Mitchell, Miller Killings Appall Us but Can’t Be Prosecuted

We should all be angry about the fatal police shooting of Tyisha Miller, but we should not be surprised that the Riverside district attorney will not prosecute the officers involved. The chances of a successful criminal prosecution in either the Miller tragedy or the LAPD shooting of Margaret LaVerne Mitchell would be near zero.

To understand this, we must draw a distinction between brutality and unnecessary force. Brutality has no purpose other than to punish people, usually because they have challenged officers’ authority; it is the beating in the dark alley, the back of the police car, the police station restroom. Because brutal officers act in private and lie about what they have done, brutality claims typically become swearing contests between accusers and police officers. Since most brutality victims are not upstanding citizens and have provoked the police in some way, their claims fall on deaf ears unless some irrefutable evidence shows up.

Our most spectacular recent brutality cases make the point.

Four Los Angeles cops claimed that they had used only necessary force to subdue Rodney King, a burly parolee who had led them on a chase and, they claimed, then attacked them. The cops’ lies were successful until the videotape appeared and they were prosecuted. Their first trial in Simi Valley , trial resulted in acquittals because it was argued poorly before a suburban jury that had much in common with the accused cops, and that never even got to see Rodney King in the flesh. The second trial, a federal prosecution, succeeded because these officials took their case seriously, and allowed the jury to see in court that King was not the grunting animal the defense had described in the first trial.

In New York, Police Officer Justin A. Volpe pleaded guilty Tuesday because the evidence against him (Abner Louima’s torn rectum and bladder) could not be written off to any legitimate police action. There is a lesson here: Brutality prosecutions succeed when the evidence is strong and competently presented.

Unnecessary force is different. It occurs during legitimate police action, when well-meaning officers needlessly put themselves in harm’s way, and then find that the only way to avoid what they perceive--rightly or wrongly--as great danger is to rely on their guns or other extreme force. Even when, as usually happens, the facts of these cases are clear and uncontested, successful prosecutions are virtually impossible.

Consider the Miller tragedy. The police were called to investigate a car occupied by an unconscious young woman who had a gun in her lap. In these circumstances, the officers had to try to awaken her, if only to determine whether she was sick or injured, But, since waking Miller was bound to startle her, the officers should have done everything possible to stay away from her car while they did so. They could have done this by using their lights, sirens and loud speakers from a distance and from behind cover, where they would be small targets for any violent reaction and where they would not perceive any predictable, but innocent, sudden movement as threatening. Instead, they walked right up on the car, and roused Miller. After that, the dominoes fell; she awoke with a start; the cops saw danger; the cops fired; a young life ended; a family is distraught; a community is enraged.

I know of scores of shootings of emotionally disturbed people like Mitchell, and they have a consistent pattern. It starts when cops investigate a disturbed person on the street. In Mitchell’s case, it was a street person who the police reportedly suspected of stealing a shopping cart. In other cases, it has been someone who has acted out, frightening--but not attacking--passersby.

The prescribed police method in cases involving emotionally disturbed people is to keep a distance, avoid a confrontational approach and to have one officer talk calmly and helpfully to the subject. This causes some loss of time and some temporary inconvenience but, virtually without exception, the person is talked quietly into custody, where things can perhaps be handled in a calmer manner.

When they are not working under close supervision or are on national television, however, some police don’t remember that the emotionally disturbed should not be treated like routine criminal suspects. The officers come on too strong and too quickly, provoking fear and a hysterical reaction. Typically, no one officer takes charge or acts as spokesperson. Instead, the officers all shout, often giving conflicting and confusing commands: “Turn around and raise your hands!” “Get on the ground!” They close in on the person, who backs up, often producing the pocket knife or screwdriver that so many street people carry. The disturbed person waves his weapon, but attacks nobody, and is finally backed up against a wall, followed closely by shouting cops wielding guns or chemical sprays. Panicked, the subject tries to run, but there is an officer in every direction. The police see him running, knife or screwdriver in hand, at one of their own, and they shoot him.

The deaths that result appall us. The criminal law is ineffective in dealing with them, however, because it focuses on the instant at which force was employed, paying little heed to the circumstances that led up to that moment, or to whether it ended a confrontation that was unnecessarily or recklessly caused or escalated by the police. In practice, this split-second syndrome means that, if an officer can convincingly testify that he had grounds for believing that his life was in danger at the instant he pulled the trigger, he will be acquitted of criminal charges no matter how much his own improper tactics contributed to the danger in which he found himself.

What do we do about this? We could change the criminal law, so that it focuses on the totality of what officers have done throughout confrontations, rather than just on the final frames of these confrontations. Under this strategy, the law would say, in effect, that killings or injuries that occur while officers are violating sound and well-established tactical procedures should be treated as crimes.

This approach is possible, but difficult and unfair. It would require us to decide which tactics are bad enough to be criminalized, and would require criminal juries to resolve technical police questions. Worse, it would blame cops for these tragedies when, most often, the officers involved are themselves victims of inadequate preparation for such integral parts of their work as dealing with the emotionally disturbed and people with guns.

In most cases, blame for unnecessary force lies not with the street cops involved, but with their bosses. With rare exceptions, officers use unnecessary force because they don’t know any better. When this happens, their chiefs and mayors should have to explain why, and to tell us what is being done to make sure that officers know better in the future. If their explanation requires resources--for training, for additional supervisors--we must provide them. But, when chiefs and mayors give us unsatisfactory explanations, or no explanations at all, we should go after their jobs, and we should replace them with people who make sure that cops do not go out on the street until they are capable of avoiding unnecessary bloodshed.