With the upcoming documentary our production company, Stateless Productions, is making on America’s Police Crisis, I have been forced in interviews to talk more about law enforcement than I have in some time. Below is an article I wrote in October 2019 that I believe needs revisiting. Many people are familiar with cases such as Warren vs. District of Columbia and Town of Castle Rock vs. Gonzalez in which the courts have declared that police officers have no mandate to protect you as an individual.
The one that is rarely brought up is Graham v. Connor in which the courts laid out how an officer involved shooting is to be judged. Below provides insight into that ruling. Prepare yourselves.
Those who take police accountability seriously had reason to celebrate this month when Amber Guyger, the police officer who walked into 26-year-old Botham Jean’s apartment, mistook it for her own, and fired a fatal shot into him, was found guilty of murder and sentenced to 10-years in prison. Many saw it as a penetration of the “Thin Blue Line” with the cop responsible for Jean’s death heading to prison (with numerous appeals waiting in the wings).
At 2 AM on October 12, Ft Worth resident Atatiana Jefferson was shot to death through a screened, closed window in her home by Ft. Worth Police Department officer Aaron Dean. Dean, 35, was hired by the department in 2017, and started in the field in 2018. Jefferson’s neighbor, James Smith, was concerned when he noticed the front door of her home was ajar. He called the police on a non-emergency number at which time the Fort Worth PD dispatched officers on a welfare check. Instead of knocking on the door, they walked around the house in the dark with flashlights which led to the shooting.
On Monday, the Fort Worth PD said that before they could terminate the employment of Aaron Dean, he resigned. A few hours later they announced that Dean was being charged with murder. The next day Dean made bond and was released from custody.
There is a specific reason for beginning this article with a discussion of the Guyger verdict, and those who view the Jefferson shooting by Dean as one worthy of a long jail sentence aren’t going to like it. The fact is that Guyger was not performing her duties as a police officer when she fired that fatal shot into Botham Jean. Aaron Dean was. And, if the history of police shootings of “mundanes” teaches us anything, it’s that they are rarely found guilty, even in a jury trial.
Who Decides What a ‘Reasonable’ Shooting is?
If a plea deal in the murder charge of Aaron Dean is not made, the defense will undoubtedly make the argument that Dean’s shooting of Jefferson was “reasonable,” and that he feared for his life. The charges that Dean is facing for a shooting on duty are rare. “Between 2005 and April 2017, 80 officers had been arrested on murder or manslaughter charges for on-duty shootings. During that 12-year span, 35% were convicted, while the rest were pending or not convicted,” according to work by Philip Stinson, an associate professor of criminal justice at Bowling Green State University in Ohio.” That is 80 officers arrested in a 12-year span. Numbers show that police shootings resulting in the death of a citizen average about 1,000 per year. Judging by those percentages, the likelihood of an officer being punished for a shoot are miniscule. Why?
As defense-attorney Scott H. Greenfield points out in his article, “Tamir Rice’s Basically Reasonable Murder,” about the 2014 police shooting of a 12-year-old boy playing with a toy gun at a park in Cleveland, Ohio, an accused officer’s actions are to be judged on “objective reasonableness” following the Graham Vs. Conner decision. He notes that that may sound good until you realize how that is defined when the defendant is a cop:
“The practical effect of the Supreme Court’s decision in Graham v. Connor and other federal court cases, is that those sitting in judgment of an officer’s use of force must view the relevant facts from the perspective of the law enforcement officer on the scene. Accordingly, the relevant facts are those facts, and only those facts, that were available to the officer at the time the decision to use force was made. After acquired information cannot be used to determine the validity of an officer’s actions. Moreover, because the perspective must be that of the law enforcement officer on the scene, it is extremely important to look at those relevant facts through the eyes of an officer trained to recognize and react to a threat.” [Emphasis added.]
Greenfield continues, “This is where “objectivity” gets twisted, as it’s not the reasonable person’s idea of objectivity, but the reasonable cop’s. And yet, not even the reasonable cop, but the reasonable cop as seen through the eyes of the shooter. And so the word ‘objectivity’ may be in there, but it’s as subjective as it gets.”
Furthermore, the Court concluded that the issue must be viewed “from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight…”
Using the Tamir Rice investigation as an example, Greenfield exposes who the “experts” were who were brought in to decide the “objective reasonableness” of the shooting, “The county prosecutor hired two ‘outsiders,’ meaning they weren’t connected to the Cleveland Police Department. But as outsiders go, they were as inside as it gets. There was a report by retired FBI agent Kimberly A. Crawford and one by S. Lamar Sims, a Colorado prosecutor. Both arrived at the only conclusion they could, given their mandate.”
“Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.”
Greenfield explains: “The only constitutional provision at issue when law enforcement officers seize an individual by using deadly force is the first clause of the Fourth Amendment that provides:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated…”
“It is significant that the Fourth Amendment does not require a law enforcement officer to be right when conducting a seizure. Rather, the standard is one of objective reasonableness. In Graham v. Connor, 490 S.Ct. 386 (1989), the Supreme Court of the United States held that the determination of the reasonableness of an officer’s decision to use force must be made from the perspective of an officer on the scene. The Court noted that “officers are often forced to make split-second judgements-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.”
Those who are holding out hope that former officer Aaron Dean will be punished for an act that would have the average person, not protected by the system, staring at the walls of a prison cell for a number of years, may have only one hook to hang that on.
Recent incidents such as the Eric Garner murder at the hands of NYPD officer, Daniel Pantaleo, show the full spectrum of what Greenfield discusses. Six months after the incident, a Staten Island grand jury decided not to indict Pantaleo. Protests nationwide broke out and the NYPD made a settlement with the Garner family. “In 2019, the U.S. Department of Justice declined to bring criminal charges against Pantaleo under federal civil rights laws. A New York Police Department disciplinary hearing regarding Pantaleo’s treatment of Garner was held in the summer of 2019; on August 2, 2019, an administrative judge recommended that Pantaleo’s employment be terminated.”
In the case of Pantaleo, after years of trying to get him brought up on charges, the inevitable “political” pressure managed to remove him from his job without his pension. Was justice served for a senseless murder caught on video? Hardly. But it does point out the one way those who wish to see Dean punished for his crime may get their wish. Intense, political pressure must be applied. Then, and only then, do we see examples of the system “sacrificing” one of their own.