Should police face criminal charges for mistakes?

Great Debates
1

In this aging thread there’s a debate about a specific botched SWAT raid that resulted in a man holding a golf club being shot dead by police in his home. While nobody wants to defend the poorly executed raid itself, the officer who fired the fatal shots is not being charged with anything criminal, as he claims that he thought the club was a sword and was therefore justified in feeling threatened.

Opinions range from “charge him with first degree murder” to “he did everything right,” with the middle ground being held by Bricker, who argues that the officer should be disciplined but not charged. His most recent post in its entirety is this:

As a layperson I’m not sure how to argue this. If this statement is true, it leaves the door open for extraordinary mistakes to be criminal. I think that’s what negligent homicide is for, or manslaughter, or whatever it can be called.

Poster Enderw24 agrees with me, saying this:

Bricker’s response was dismissive, stating that anyone who actually knows a thing or two about the criminal justice system would agree that the officer’s actions don’t amount to anything criminal. Feel free to correct me on that assessment.

I did some digging to see if I could find similar cases. Specifics seem to vary greatly so I’ll try to summarize. And yes, I’ve cherry picked these cases, so I have no idea if the outcomes can be considered typical.

Case 1: Police shoot man holding a remote.
Police execute a knock-and-wait warrant on a house where an informant says he bought a small amount of cocaine earlier in the day. Upon entering, they are confronted by a man holding a remote control and shoot him, thinking it’s a gun. No criminal charges were filed.

Case 2: Police shoot an unarmed woman during a drug raid.
Police raid the home of an armed drug dealer. Someone dealer unleashes pit bulls on the cops, who open fire on the dogs. Meanwhile, an officer upstairs sees a shadowy figure at the end of the hallway, and, hearing the shots, assumes he’s being fired on. He shoots and kills a young woman. The officer was charged with negligent homicide and negligent assault and acquitted.

Case 3: Police shoot another unarmed woman during a raid.
Police enter a home searching for an armed robbery suspect. They encounter the suspects wife in a hallway. Accounts differ, but the officer in question vaguely remembers feeling the recoil of the weapon. Nobody heard the shot. The woman was shot in the throat and died. A jury inquest found that the officer had committed negligent homicide, but no charges were filed.

Moving away from raids:

Case 4: Officer shoots unarmed man after police chase.
Following a high speed chase in a Corvette, an officer tells a prone man to get up. When the man complies, he shoots 3 times. There’s actually video of this one, it’s pretty disturbing. The officer argued that the man made a threatening move and went to reach inside his coat. The officer was charged with voluntary attempted manslaughter and acquitted.

Case 5: The infamous Oakland BART shooting.
An officer shoots and kills a handcuffed man, presumably because he thought he was holding his tazer instead of his gun. The officer was found guilty of involuntary manslaughter and not guilty of second degree murder and voluntary manslaughter.

My take away from this is that criminal charges are rare, and when they are filed they’re usually not severe – misdemeanors versus felonies. And in almost all cases they end up getting acquitted. The BART shooting was the only one I could find a conviction for, and the guy was frickin’ handcuffed, and even then he was only sentenced to 2 years minus time served.

I’m not sure where this leaves the debate. I still think Bricker is optimistic about saying officers will never face criminal charges for making ordinary mistakes, because I think “ordinary” is too much of a weasel word. However, he’s ultimately right about the severity of the charges and the likelihood of conviction.

And with that, I’ll shut up and see what others have to say.

2

The police have extraordinary powers. These should come with extraordinary responsibilities.* While I recognize that the circumstances of a police raid involve much noise and confusion and things happening quickly and a very real danger to the police officers, the fact that the police escape blame under pretty much all circumstances leads me to wonder what level of accountability they truly have for such “mistakes”, especially where such “mistakes” result in the death of an innocent person.

Consider the case (in the UK) of Jean Charles de Menezes, a Brazilian man whom the police mistook for a terrorist, followed on two buses and then into the London Underground where they tackled him and shot him multiple times with no/limited warning (depending on which eyewitness you believe). No charges filed against anyone, no personal responsibility, and only a fine for the police force as an organisation. Should we not expect better from the men we entrust with our safety?

  • No, I’m not quoting Spider-Man. Shut up.
3

Yes. Police officers should be held to scrupulously high standards of conduct in all aspects of their professional duties, and especially in the use of deadly force.

4

Agree with this, but not to the extent that the officer should face criminal charges in deadly situations. The people who should face criminal charges are the ones who create the deadly situations, the people who deploy the SWAT teams for non-deadly crimes like drug use.

5

The other issue is that the police are required, as part of the job description, to put themselves in potentially risky situations. Apply an abnormally high standard to their actions under these situations means that they are going to be likely to go to jail for simply trying to do their job.

While it’s fair to say that no individual person needs to be a policeman, society needs policemen to function, so there will be policemen.

6

The job description should be understood to include acceptance of exceptional risks, for the sake of protecting society. With proper professional conduct, this should not mean going to jail. It may mean a greater likelihood of being hurt themselves.

We should recognize this, and train, pay, and honor accordingly police officers who accept this risk as a necessary part of their duty. The alternative is innocent people being killed by police who shoot too soon, and I don’t believe that is tolerable in a free society.

7

I don’t know how true that is, although I’m sure Bricker knows more than I do. Breaking the law because you are ignorant of the law doesn’t seem like it will protect you. Breaking it because you are too mentally ill to understand the law hasn’t prevented prisons from being filled with the mentally ill.

Things like (non-substance abuse involving and non-negligent) accidents aren’t prosecuted as murder as far as I know. But who knows with the path our society is on with its tough on crime bs.

8

I’m totally on board with this line of thinking, and usually I’m very willing to grant a lot of leeway to officers. For example, in case #4, up until the point where the officer fired 3 times into a prone man’s back, he was engaged in activity that nobody would ask of a normal person. He was involved in a high speed chase at speeds north of 120mph and was then detaining two drunk guys by himself waiting for backup to arrive. I think in the heat of the moment he thought he was saying “stay down” when he was really saying “get up,” and when the guy started to get up real fast he freaked out and pulled the trigger. Society benefits from not throwing that guy in jail because we want cops to be able to pull over speeding drunks and detain them while waiting for backup, and they should be able to protect themselves while doing it. However, he plainly screwed up, and the DA saw that and filed appropriate charges. At that point, it was up to a jury, and I’m 100% OK with a jury acquitting someone.

However, in case #3, the cops completely had the upper hand. We gave a guy an MP5, told him to enter a risky situation, and then he accidentally shot someone to death. I see nothing wrong with telling the cops when we hand them MP5s, “If you accidentally shoot someone with this, you’re going to go to jail.” In fact, case #5 proves that’s true to some extent.

In short, I don’t think we’d be holding cops to “abnormally high standards” by prosecuting them when they accidentally shoot people. I actually think that’s a pretty low standard. Furthermore, I think that it should be up to a jury to decide how “accidental” an accidental shooting is, rather than letting DAs grant near total immunity to cops.

9

While drug use is indeed a non-deadly crime, drug dealing is not. Even if the police stopped arming themselves for drug busts, my guess is it is unlikely the dealers will reduce their arsenals, as they still need to protect themselves from each other.

10

The problem in all of these, IMO, is not so much the actions of the officers in the situation, as the bad policing that puts them in those situations. When you go bursting in on people at 3 am with guns drawn, bad shit will inevitably happen. The fault lies not so much with the officer with the gun in his hand as with the commanders who decide that every drug bust needs the full SWAT treatment, the politicians that keep them in place, and we the fucking people who keep electing those politicians and supporting the drug war.

11

I didn’t say anything about individual police disarming themselves. The SWAT team IS the weapon and should train and arm themselves as best they can. The person who wields the SWAT team, the one who choses when to use them and when to not use them, should be held responsible for the outcomes, both good and bad.

12

this is the Nürnberg defense. we ought to be able to expect better and we ought to expect that the officer himself should view bad policing decisions with circumspection.
no, i’ll place the fault in the relative hyper millitarization of US police forces. many act as if they are junior soldiers/gendarmery and ignore the social aspect of policing. hiring preferences for veterans doesn’t really help the matter.

13

I know police work is dangerous and stressful, but if you’re going to take the job you should be able to cope with the dangers involved. While none of these officers probably intended to hurt, maim, or kill innocent victims, at the very least they should be dismissed from their positions so that more competent officers can fill their role (especially in cases where they fail to follow simple protocol). I don’t like the idea of trigger happy cops keeping their jobs.

As far as those who organize and coordinate bust and sting operations, I also believe they should be held responsible for any poor planning. Yes, a bust at 3am when you believe a suspect to be sleeping seems like an opportune time, but in situations where potentially innocent people will be disoriented and confused it is hard to justify those tactics. It will be much harder at that time for police to communicate to people who might not be able to understand coherently after just waking up.

And of course when dealing with those who are wanted for drug use, any time of day will be a problem. I agree that in those cases an entire police raid is probably not necessary and it seems it’s in these situations where innocent or nonviolent offenders are hurt the most.

14

Here is a well written article that may be of interest regarding use of deadly force incidents.

From the linked article…

*Admittedly, police officers are held to a higher standard but that standard does not dilute all protective rights. It is the rule of law that matters and whether the officer’s actions met the legal standard. Neither politics, emotion, personal agenda, ideology or deep seated animus have any business in the conclusion as to whether or not a police officer’s use of deadly force is lawful. *

15

Expecting you to not shoot people for doing things in their own home they have a perfect right to do is not an abnormally high standard to hold someone to.

For all of the examples given in the OP, I’d have no problem with the cop getting the death penalty.

16

This may be informative for some: Mens rea

17

I think’I’m with Bricker on this one.

As a society we give police the power to use physical force to maintain order and enforce our laws. This doesn’t mean that a cop can walk down teh street and randomly pick off people he doesn’t like but it does mean that he has some insulation from criminal prosecution for force used in the line of duty.

Of course you can still sue the police department for negligence and at least in NYC killing innocent people results in large settlements.

18

So the rule of law determines if something is lawful?

19

I think the standard should be “when it is determined that mistakes are criminally negligent, police officers should face criminal charges for their mistakes.” I think that is the standard now, and it does give the DA a lot of power. But DAs have a lot of power, always have, always will. It is in the nature of the job.

However, a DAs decision does not determine the criminality of an action. Whether or not something was criminal can never be argued conclusively until it is put before at the very least a grand jury or argued before a judge in a preliminary hearing, and arguably a full jury that explores the facts of the matter. If a grand jury or a judge in a preliminary hearing say that a case against someone can go to a full trial, that tells us there’s at least some level of evidence to support the assertions of the prosecutor that there exists a criminal act and there is some basis for charging the defendant with committing it.

Some would argue though, that without a guilty plea or a conviction, it’s still not a clear thing as to whether or not an accident constitutes a crime.

However, to get back to the prosecuting attorney, his job is not to determine whether or not a crime has been committed and then decide on what to do about it. A prosecutor’s job is to decide how best to represent the interests of the state. That means it’s entirely valid for a prosecutor to look at a situation and say “well, it’s obvious a crime has been committed. However, the police have not given me a very strong case, in fact I think there is no hope of us attaining a conviction in court, further, given the legal counsel retained by the defendant they will recognize this and definitely won’t agree to any plea agreement given the weakness of our case.”

In cases in which a police officer’s mistake has caused harm or death to someone a prosecutor is probably going to base his decision on a few things:

  1. How much he likes the local police department, how much he feels like they’re on the “same team” and is willing to give them a pass. I list this first because let’s be honest it’s definitely a factor for some prosecutors and there’s no sense hiding that fact. It shouldn’t be, but it is. People protect their own, even when they shouldn’t, world isn’t perfect etc etc.

  2. How clear cut the case is. In the case of most accidents or mistakes, even if it is a monumental mistake, it’s going to not be a clear cut case. So the prosecutor isn’t even looking at a clear cut crime for which he doesn’t have a strong case to argue before a jury, he’s looking at a complicated issue that he will face an uphill battle convincing a jury even is a criminal act let alone convincing all twelve members to convict.

  3. Does the prosecutor believe the action constitutes a criminal act? Prosecutors are professional attorneys who have experience in the practical application of criminal law. In their official capacity they do have the authority to make determinations like this and in cases that aren’t exactly clear cut it’s highly likely some members of the public will have different opinions than the prosecutor. However, the prosecutor is the one who makes the decision.

  4. Does the prosecutor think they have a case? I mean really, that’s the sort of question every lawyer that represents any party is weighing in their mind. When you’re up against a police officer they are always going to have the deck stacked in their favor. A lot of society likes police officers. People don’t like criminals, often times those who are killed accidentally were in fact part of the criminal element, and juries will definitely hold that against the victim. If the case is pretty weak on technical grounds, when you factor in how strong of a defendant a police officer is and the fact that through their union they are pretty much guaranteed to get at least decent representation, it’s the rare case in which the prosecutor thinks there was a crime, isn’t pre-disposed towards favoring the police, and also thinks they have a strong enough case to bring to trial.

But yeah, I don’t think prosecutors should base favor towards law enforcement in their decision. But the rest of it is very valid and will still lead to very few accidents by police getting prosecuted.

20

Just a slight diversion here; the posts above have got me thinking about the legalities involved.

Specifically: it is 3.00am, and a dope dealer is sitting in his living room watching TV. Suddenly, the front door crashes open, and in comes a guy carrying a gun.

The dope dealer picks up his Uzi and shoots the guy with the gun.

Turns out the dead guy is part of a SWAT team conducting a drug raid.

Could the dope dealer successfully argue “self defence”?