One set of rules for police and one for average citizens?

A Grant County, Washington police officer who accidentally shot his wife will be re-instated to his duties as a police officer.

Grant County Sheriff's Deputy Jose Rivera had apparently shot his wife while "dry-firing" a gun without realizing that there was a round in the chamber. The shooting was handled by the Franklin County Prosecutor's Office. Franklin County neighbors Grant County.

He was originally charged with two counts of assault 3, a class C felony, but pled down to reckless endangerment, a gross misdemeanor. He was sentenced to 48 hours of community service and two years of probation. The felony counts, which would have disqualified him from voting and possessing a firearm were dismissed.

He is not the only officer to have been re-instated after shooting someone. It has happened in New Orleans, in Columbus (after an officer kicked a suspect who was already on the ground), in the City of Athens for an officer who lied, and in countless other examples.

When the police do actually have trials, they tend to opt for bench trials, as opposed to jury trials. A bench trial is one that is conducted by a judge only. As the referenced Washington Post article suggests, this has been a successful tactic. Judges hear a lot from police in dealing with crimes in their courtrooms and, like certain demographics, many judges to seem to tend to favor police officers.

The danger in all this is a divide in the treatment between law enforcement and average citizens. Other police departments are often called upon to investigate where police misconduct. The results are not too surprising. Most of the time no charges are filed. The police wait until the investigations are fully completed before making any arrests. The officer is often placed on paid leave until the investigation is complete.

This is pretty disparate treatment than the average person who may be charged with a crime. Charging against the average person is sometimes done before the investigation is fully complete. A fair number of people are held on bail and cannot afford to post bail, meaning that they sit in jail until their case is ready for trial, which can take months. This can result in losing their jobs, losing their housing, losing their property, and otherwise having their lives ruined. If the charges get dismissed prior to trial or the person wins at trial, they usually have very little recourse for their pre-trial incarceration.

There are many gaps in the criminal justice system that still allow for favoritism, bias, racism, classism, and other disparate treatments of individuals. While some studies have been done and positive reforms and steps have been undertaken to analyze and address some of the issues. There is still a long way to go.

Especially in relation to police incidents, the police from the next county over, who probably deal with the police in the neighboring county somewhat regularly, should not be the ones to deal investigate. The police are not going to police themselves. Some watchdog group involvement and community involvement should be incorporated into these procedures. Perhaps a federal agency specifically tasked with investigating these types of incidents should be created. In any event, the current system is creating one set of rules for police and one set of rules for people, which only serves to increase the divide between the police and the citizens of this country.

Testilying

What is testilying? It is a shorthand for police lying on the witness stand. It has been around for decades, and it is one of the unfortunate results of the American criminal justice system.

A 2014 Washington Post article outlines some of the history of the problem. The article explains the motivations behind why any given officer may decide that telling a lie in any particular case is worthwhile. First, some officers view themselves as engaged in a war or struggle against the bad guys. One of the obstacles in the way of the good guys (the police) and winning the war are these pesky legal loopholes that are letting the bad guys go.

Second, pressures from the job like the creation of specialized task forces to go after certain types of offenses or offenders like drug and gang task force and requirements of a certain amount of arrests incentivize officers to do whatever it takes to go after these specialized targets and get results. Who would want to spend 3 months building a drug case only to have the entire thing thrown out (think of the time, money, and effort that would go into such an operation) because of some minor procedural error?

Third, so many of the pesky legal loopholes have a very simple fix: just lie about it. Most of the times it will be the word of an accused criminal, probably with other criminal history, versus the word and spotless (conviction-free at least) record of the police officer.

One of these situations is outlined in the article, but was simply that a court case, Mapp v. Ohio, 367 U.S. 643 (1961), which held that evidence collected in violation of the fourth amendment (prohibition against unreasonable searches and seizures) could not be used against the accused in court. At the time, police were searching people upon little or no cause and discovering illegal items on them and those items were admissible in court. After Mapp, the police continued to testify as usual, that they saw someone acting kind of suspicious and so they searched them. But the judges were doing something different now, they were suppressing the evidence from these cases and these alleged criminals were walking free.

Then police discovered that if the person accidentally exposed the illegal item prior to the search, that the item would still be admissible. And so the "dropsy" was born. A rash of cases sprung up where people just happened to drop their narcotics where the police could see them and arrest them for it. But the evidence would be admissible in court because the drugs were not found as a result of an illegal search.

The system did, and still does, depend so heavily on just the word of an officer, that despite a rash of these cases, it was still impossible to prove that in any particular case that an officer was lying.

Since the 1960s, there have been a string of incidents where this behavior was finally getting exposed due to the advent of widespread video. One such similar sort of incident was the Rodney King beating where Mr. King and several others were beaten by LAPD officers. A bystander happened to catch the incident on video. Otherwise, it probably would have gone by as just another arrest where the suspect "struggled" or "resisted" and force had to be employed.

A 2013 article from the New York Times recounts, amongst other things, a particular Brooklyn Judge's experiences: 

"In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. 'I thought I was not naïve,' he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. 'But even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.'"   

The same article notes that this was not just done for major crimes, but even simple crimes, like trespass.

In Washington, police lied about something as stupid as a public bus driver using profanity against them. Lucky for him, the incident was caught on video. Otherwise, it would have been his word versus the word of police officers. The way that tends to play out is that the non-police person are simply not believed.

Despite all the revelations and videos exposing police lies, the problem continues. A recent New York Times article highlights that the problem continues today, and yet very little is done to combat it.

An article from WCPO in Cincinnati shows that some officers are allowed to remain with their departments after caught lying. Further, the police have a code of silence amongst themselves, so internal reporting of one police against another cannot be relied on. The police are often in dangerous situations and do have to trust their partners and each others. That is not to say that the trend of militarization of police is a good phenomenon; however, the human nature of the situation is understandable as to why one may be extremely reluctant for turning on their partner or other cops.

The problem can even be so bad as the police being worse than criminals themselves. Police have been convicted of raping and robbing suspects.

The solutions are not easy. One is for the criminal justice system to wake up to this phenomenon. In Washington, pre-textual stops, that is pulling a person over for a minor traffic violation because they really suspected some other crime, was illegal. Then in State v. Arreola, 173 Wn.2d 1028 (2012), the Washington Supreme Court decided that if the officer testifies that he would have pulled the person over for the minor traffic violation anyway, then the stop is now valid as a "mixed-motive" traffic stop. So, the message to police is just say that you really would have pulled them over for that muffler violation anyway. How can anyone challenge motives that existed only inside the officer's head? Such incentives need to stop. Situations like this that just ask the officer for their subjective opinion where one answer leads to evidence coming in and another answer (which is sometimes the truth) leads to evidence getting kept out needs to end.

Another solution is that every officer be equipped with full audio and video that is out of their control. We know what happens with video in their control (also here). If there is no audio or video, the courts should strongly consider that something is awry and perhaps even suppress any evidence obtained. This may seem like an extreme solution as opposed to the current system. But there are much bigger problems that have been overlooked for far too long.

Further, more oversight and proper training of police has been long overdue. The police wield a great amount of power and have an difficult job where they are placed in difficult situations. New approaches and tactics are available. The emphasis should switch from making arrests and getting convictions at any cost to helping the neighborhoods and communities that they work in. The "service" portion of protect and serve should be emphasized versus the smashing heads/making arrests and asking questions later approach.