Ari Armstrong, Civil Liberties, Criminal Justice, Exclusives, Legal, Uncategorized

Armstrong: Getting to real police accountability

“Officers never had, nor did they ever attempt to articulate, any reasonable suspicion that McClain may have engaged in, or sought to engage in, any criminal activity.” That’s what I wrote last July about the police killing of Elijah McClain in Aurora. A newly released independent investigation agrees.

The February 22 report finds “none of the officers articulated a crime that they thought Mr. McClain had committed, was committing, or was about to commit.” The report was “not able to identify sufficient evidence that Mr. McClain was armed and dangerous in order to justify a pat-down search.” The arrest of McClain was unjustified because the facts were not “sufficient to establish probable cause of a crime.”

The report suggests that the officers probably were not justified in applying a carotid hold while they held McClain to the ground. The report notes that the officers caused extraordinary pain to McClain—I would call their treatment of him torture—apparently without sufficient cause. Then the emergency team from Aurora Fire “administered a ketamine dosage based on a grossly inaccurate and inflated estimate of Mr. McClain’s size.”

And then came the whitewash: “The Aurora Police Department’s Major Crime/Homicide Unit investigation of the death of Mr. McClain raised serious concerns for the [independent] Panel and revealed significant weaknesses in the Department’s accountability systems. . . . The interviews conducted by Major Crime investigators failed to ask basic, critical questions about the justification for the use of force necessary for any prosecutor to make a determination about whether the use of force was legally justified. Instead, the questions frequently appeared designed to elicit specific exonerating ‘magic language’ found in court rulings.”

Leaning heavily on the bullshit police “investigation,” District Attorney Dave Young washed his hands of the horrific treatment of McClain at the hands of police. Any reasonable, unbiased person looking at the details of the case would conclude that the officers in question unlawfully detained McClain, grievously assaulted and tortured him, and caused his death. But, as I wrote last summer, “Obviously Young holds police officers to dramatically different legal standards—much lower standards—than he holds everyone else to. We’re all equal under the law, but police officers are more equal than the rest of us.”

Of course the McClain case is just the tip of the iceberg. The Aurora PD now has a well-earned national reputation for brutalizing people. This is the same department whose officers tortured four young girls by forcing them to lay on burning-hot asphalt. You can hear the girls’ screams of agony on video, if you can stomach it. The victims sued.

Or you can watch recently released video of an Aurora officer torturing a suspect by causing his dog to viciously bite into the suspect’s leg. Supposedly the issue was the suspect’s hand was not visible or was near her waistband. The Denver Post notes, “In her lawsuit, [the suspect] said her hand was pinned under her body and she could not move it.” By this time, two large officers were sitting on the suspect. If the officer with the dog was worried about the suspect’s hand, he could have acted quickly to secure the hand. Instead, the officer wasted several moments cajoling his dog to pointlessly bite into the suspect. So the dog attack was contrary to police safety; it was a gratuitous infliction of extreme pain. Yet, shockingly, Aurora Police Chief Vanessa Wilson told the Post, “I can’t say this was an excessive use of force.” Any moral person can say that it obviously was. Aurora settled with the victim for $80,000 of taxpayers’ money.

We need to grapple with two key facts. First, serving as a tax-funded police officer is a privilege, not a right, and cops who gratuitously harm people should be promptly fired and barred from all future police work, without exception. Second, police officers should be held to the same legal standards to which everyone else it held. If anyone other than a police officer had detained, assaulted, tortured, and killed McClain, that person would have been criminally prosecuted and thrown in prison. Yet bad police officers routinely get a pass for actions that by any reasonable standard would count as crimes.

Some people might claim that my remarks here are somehow anti-cop. No, they are profoundly pro-cop, if we actually care about creating an environment where good cops can thrive. Being pro-cop does not mean excusing the abusive actions of bad cops; it means getting the bad cops off the force, permanently.

Regarding the problem of internal accountability, perhaps a new civilian review board will help. The Aurora council is considering setting one up.

What about criminal investigation and prosecution? Obviously it’s stupid to expect police departments to seriously investigate criminal wrongdoing of police officers. This is true even if multiple police agencies participate in an investigation, although having one department investigate another is somewhat better. I’m sure serious internal investigations do happen, but I’m also sure that giving police officers the responsibility to criminally investigate their colleagues creates severe misincentives. We shouldn’t allow this for the same reason that we don’t allow a person’s friends to sit on a jury deciding that person’s fate. The proper aim is to eliminate bias in the system, not build it in.

Similarly, we cannot expect district attorneys to consistently and seriously investigate potential criminal acts committed by police officers. DAs’ offices and police departments are joined at the hip. DAs depend fundamentally on the aid of police to prosecute most of their cases, and uncooperative police easily could derail a prosecutor’s career. Let’s bear in mind that the DA’s office is an inherently political one, and the office of DA often is a launching pad for higher office.

I tentatively propose that all criminal investigations of police actions automatically go to a new semi-autonomous office devoted to such cases under the Attorney General. This would not guarantee justice or equal treatment under the law, of course. The personnel of this office could decide either to treat criminal misconduct by police officers seriously or to whitewash it. But at least such an office would be less affected by built-in biases.

In the McClain case, what happened is that Governor Jared Police appointed AG Phil Weiser to serve as special prosecutor, and Weiser in turn called a grand jury. Such a decision shouldn’t have to go through the governor, as that inherently makes it at least partly political.

This shift from Polis to Weiser to grand jury strikes me as a game of political hot-potato. Qusair Mohamedbhai, attorney for McClain’s mother, is not impressed by the move: “The grand jury has traditionally been used as a political cover-up,” he told the Post. We shall see. I think Weiser is a stand-up person, but it’s easy to see how a prosecutor wanting to avoid political responsibility could steer a grand jury toward a particular conclusion and then rely on the grand jury to diffuse the political fallout. A special office dedicated to such cases would avoid at least some of that sort of political maneuvering, at least I hope. If someone else has a better idea, I’d love to hear it.

We hire police officers to keep us safe, not to hurt people for no good reason. If we care about justice, we must ensure that bad cops lose their jobs and, where appropriate, face criminal prosecution. Then the good cops can do their jobs.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism.  He can be reached at ari at ariarmstrong dot com.
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