Max Becherer/AP Photo
Police and protesters demonstrate in a residential neighborhood in Baton Rouge, Louisiana on July 10, 2016. After an organized protest in downtown Baton Rouge protesters wandered into residential neighborhoods and toward a major highway that caused the police to respond by arresting protesters that refused to disperse.

Why Killer Cops Aren’t Prosecuted

Steve Russell
7/12/16

The recent fatal shootings of Philando Castile by Officer Jeronimo Yanez in Minnesota and Alton Sterling by Officer Blane Salamoni in Baton Rouge, Louisiana, were both caught on video, but demonstrations all over the country reflect the widely held opinion that the shooters will face no consequences.

The demonstrators are probably right. All crimes are not equal. All homicides—cases where one human being kills another—are not equal. For example, some homicides are justified, and legal. When a convicted murderer is executed, the death certificate lists “homicide” as the cause, but the killing is legally (if not morally) justified and no investigation is necessary.

Officer-involved shootings are often on the line that separates justified homicides from others, so they are investigated. That investigation is never similar to what is done for other homicides and so the fact that officer-involved shooting investigations often do not reach conclusions similar to what we see in other shootings should be no surprise.

To ask, as a matter of public policy, whether the differences in officer involved shooting investigations ought to exist requires knowing what they are. Here are eight ways an officer is treated differently than a civilian in a homicide investigation:

1. When an officer is killed, the criminal justice system pulls out all the stops to catch the culprit. But when an officer kills someone, everyone in that system thinks, “If he hadn’t killed, did he think would he have been killed instead?”

Similar reactions attend shootings of prosecutors, judges, or witnesses. There cannot be a reliable rule of law when persons tasked to enforce the law can be assassinated with impunity.

The times in my career as a judge I have had to come to work under death threat or have my home close-patrolled, I did not feel totally safe, but I felt better than if the police reaction to the threat were nothing more than starting a file.

The system has to protect itself or nobody is safe, but abandoning fairness or just the appearance of fairness undermines the system. Think of the Leonard Peltier case in terms of the procedure. Even if he’s guilty, he deserved a fair trial, and protection of law enforcement officers is the only possible reason for keeping a man of his age and health behind bars.

Cop-killers get deserved special attention, but there are few limits to that attention, and the deceased in every officer-involved shooting is made to appear a potential cop-killer.

2. When the officer is the perpetrator of the homicide, he or she is almost never interviewed in the same circumstances as other persons accused of homicide.

A civilian person of interest in a homicide may be interviewed without even a chance to change out of bloody clothes, and investigators will conduct the interview without a defense lawyer present, if possible. A spokesman for the Baton Rouge Police Department told The New York Times that the officers involved in the shooting of Alton Sterling were not interviewed the day of the incident because “we give officers normally a day or two to go home and think about it.”

Taking a human life unleashes powerful feelings even when doing so was necessary. Considering that, a police officer involved in a shooting will often be sent home right away and only returned to duty in a desk job. By union contract or by custom, the officer will have a lawyer provided and plenty of opportunity to talk to that lawyer before giving a statement for the record.

When the system finally does get around to recording the officer’s statement, the officer knows what’s on the video (if there is one, and there so often is now with phones and body-cams prevalent), and so is unlikely to give a statement that conflicts with it.

3. The normal burden of proof is reversed.

In normal circumstances, the homicide investigator is looking for facts to show probable cause to believe that an unjustified criminal homicide took place and the person of interest committed it.

Studies of how innocent people get convicted show a lot of “confirmation bias.” That is, investigators start with a theory of what happened and they minimize or disregard evidence that does not support their preferred theory.

When a police officer has deployed deadly force, the bias of every police investigator is to believe that the use of force was justified. Nobody wants to charge a fellow officer with a crime for coming down on the wrong side of a line around which they have had to dance. Rookie officers don’t get assigned to investigate other officers.

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