CAN RESTORATIVE JUSTICE HELP REFORM THE CRIMINAL JUSTICE SYSTEM?

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HOW ARE OFFICERS HELD ACCOUNTABLE IN POLICE SHOOTINGS?

With the police shootings of Alton Sterling in Baton Rouge, Louisiana and Philando Castile in St. Paul, Minnesota stirring demonstrations and vicious retaliatory shootings of police officers, I thought it would be important to dialogue with the general public how society holds police officers accountable after officers have taken the life of an individual.

Police agencies tend to work under a veil of secrecy that is intended to protect investigative practices and the integrity of the case. It is my intention to reveal the investigative process—at least how I experienced it—when a police officer affects the ‘ultimate arrest’ and takes a human life.

​While prosecutors found justification in each of the police shootings I investigated, I did work in other units where officers were the target of an investigation.  Specifically, while serving as a detective in the Sex Crimes Unit, I had several investigations of officers committing sexual assaults where they were dismissed from the department and/or criminally charged.
While serving as a detective in the Homicide Unit in Baltimore County, Maryland, our duties were not merely limited to investigating murders. Homicide detectives were responsible for investigating all murders, questionable deaths, juvenile deaths occurring outside of medical care, and all police shootings, regardless if the subject shot by the police died as a result of their wounds.  The process of a police shooting was more complicated than investigating a street murder.  While a routine murder investigation focused on the criminal aspect of the crime, a police shooting diverges twofold. As homicide detectives investigated the shooting from the criminal aspect, the Internal Affairs Unit detectives worked alongside the homicide detectives, conducting an administrative investigation.

Under the criminal dimension of the investigation, detectives would implement all of the standard investigative methodologies readily available.  The scene would be taped off, tent markers placed next to evidence, the scene documented with photographs, sketches, and diagrams, officers and witnesses interviewed, handguns collected, ammo and shell casings counted, radio and other communication devices reviewed, and the list goes on. 

Homicide detectives would also evaluate the scene as it related to the elements of the crime and exceptions—or justifications—for the shooting.  Did the officer perceive that their life, or the life of another, was in jeopardy? Even though the officer believed that life was in danger, this does not preclude that the officer was justified in their actions.  Detective would need to complete the case, document interviews, receive the autopsy report (which can take up to 10 weeks in Maryland due to toxicology examinations), and submit the case folder to the prosecutor’s office for review. It is here where prosecutors determine if the officer’s actions were justified.  Furthermore, should cases arise where there was a concern of integrity in investigating the case or making the decision whether or not to prosecute, a neighboring police agency would be called in to complete the investigation or an independent prosecutor’s office would be contacted to review the case and make the legal determination.

On the other hand, Internal Affair detectives would also meticulously pour through the detailed facts derived in the investigation and make a necessary decision about whether or not officers—including those who were on the scene and were not involved in the shooting—had acted in agreement with departmental rules and regulations.  While there is a plethora of regulations, such as wearing your hat or speaking with the members of the public in a polite and courteous manner, the top priority of the Internal Affairs unit was to account for the justification of each round as it aligned with the use of force policy.  For example, if a car were barreling down the road in an attempt to run over an officer standing in the roadway, the officer would be justified in un-holstering their weapon and shooting rounds at the driver in an effort to stop the threat. However, if the officer stepped out of danger’s way and continued shooting at the vehicle as it passed by their location, these rounds could be construed as being ‘out of policy’.  In such a scenario, the prosecutor would most likely determine no criminal prosecution.  However, the Internal Affairs Unit would recommend disciplinary sanctions for the rounds discharged out of policy. Such sanctions could include warnings (verbal or written), further training, loss of leave, demotion, or even termination.

In watching the interviews with everyday civilians following the shootings of Alton Sterling and Philando Castile, I noted how they were demanding ‘immediate’ disciplinary action against the officers, which raised a great deal of concern surrounding Constitutional rights and guaranteed due process. Like civilians, police officers are also entitled to Constitutional rights.  They too have the right to the due process clause and to ensure that their rights are not trampled.  However, given their position in society as keepers of the peace and the immense powers they are endowed with, it is expected to hold them to task when they exercise their powers and to ensure that they have not abused their authority.

If civilians are entitled to these fundamental and detailed investigative processes, why wouldn’t we want to use the same procedures when investigating our officers?  If we as a society expect that civilian involvement in crimes is thoroughly investigated before charging a citizen, but accept rushing to predetermined judgments when officers are at the center of the case, who is to say that we will create a new illogical standard of probable cause and have that standard employed with its citizenry?

Should @KathyGriffin be arrested for her actions?

Just yesterday comedian Kathy Griffin published a horrific photograph of a bloodied President Donald J. Trump mask as if he was decapitated.  The photo hit the internet in a frenzied storm as people were shocked and outraged at the comedian’s offensive gesture. Griffin’s gory picture reminded me of the Daniel Pearl beheading video I watched late one night in 2002.

I was repulsed, incensed, and infuriated.

During my 25-year law enforcement career in the Baltimore County Police Department, I had the pleasure of working with the agency’s Dignitary Witness Protection Team for eight years as an ad hoc assignment. When I was first accepted into the unit, I underwent 40 hours of training, most of which was conducted by the United States Secret Service (USSS), where we engaged in practical exercises enhancing our knowledge of the defensive practices used to protect the President of the United States (POTUS).

@SecretService tweet.

The USSS assisted our agency in this training due primarily to the fact that our jurisdiction was relatively close to Washington D.C. and afford the POTUS the opportunity to make an appearance outside of DC and return with little interruption in their itinerary. During my duration of service in the DWPT, I helped supplement USSS protection details for several distinguished dignitaries, to include President William J. Clinton, Vice President Al Gore, and First Lady Hillary Rodham Clinton, who visited Baltimore County, Maryland for various reasons.

The number of hours that goes into the preparation, facilitation, and assessment of each event is enormous. In anticipation of each detail, members of the USSS and the DWPT would work through known threats and assess their potential for bringing harm to an event. Due to the necessity to complete this task with our responsibilities, we were versed in the federal laws concerning threatening the POTUS.

According to the Cornell Law School website, threatening the POTUS is a class E felony, and defined under Title 18, U.S. Code § 871, paragraph (a) as:

(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both. [emphasis added]

In evaluating Kathy Griffin’s published photograph of a beheaded POTUS, her actions are tantamount to a violation of the federal statute. However, some would raise the flag of “Freedom of Speech” to Griffin’s defense. After all, early colonist hung politicians in effigy and still do today as recent news articles have accounted for George W. Bush and Barrack Obama hung in effigy.

While the debate remains if Griffin’s actions fall under her First Amendment right to speech, the USSS has indicated in a recent tweet that they are investigating the incident.

For me, Griffin’s actions were repulsive and crossed the criminal line.  SCOTUS has reviewed a myriad of cases through the decades defining the lines of our freedom speech.  In the infamous 1919 Schenck v. United States case, Justice Oliver Wendell Holmes Jr. gives a summation of the concept that remains today. While people have the right to express themselves through their speech, shouting “fire” in a public place and inciting the potential to bring about harm to others is not protected speech.

This simple premise remains foundational today.

Kathy Griffin crossed a line, and for that, she should be held accountable. Whether through legal channels, our society, or both, Griffin needs to understand that the message conveyed through her fiery speech can never be taken back. They will forever resonate in our minds as hateful. We should recall the Proverb that says: “Whoever keeps his mouth and his tongue keeps himself out of trouble.”

Even with her apology, Griffin has forever left an indelible imprint on me that will cast her in a dark shadow. In the future, whenever I will hear her name or see her in the limelight, her accomplishments will be diminished by this one reckless indiscretion.

Perhaps some valuable words of advice I learned many years ago would be appropriate:

“Think before you speak.”

HAS PC GONE TOO FAR IN POLICE AGENCIES?

Just some weeks ago the Seattle Police Department announced they would no longer be calling offenders as 'suspects' in their police reports and would now be referring to these individuals as 'community members.' You can read more about the story here.

Has political correctness (PC) finally gone too far?

I say 'yes'! Especially when it comes to our police agencies. 

Without question, our police are required to be upstanding citizens who are will to be held accountable for their actions to a higher standard than your average citizen. Officers are also required to take an oath to uphold and defend the Constitution as it pertains to the citizens they serve. However, political correctness has the tendency to fluctuate with trends, and this could potentially bring about favoritism towards one group over another.

What happens when a targeted group is in favor or is the fad?

Will the police hesitate to enforce the law equitably, using ‘police discretion’ as a crutch?

What happens when that same group falls out of favor?

Will the police then enforce the law overbearingly against them?

While this aspect of PC seems trivial to some, it does raise the issue of validity with regards to impartially enforcing the laws of our states and nation. It is plausible that an officer, who may be considering a ‘community member’ as a suspect in a crime they are investigating, could hesitate in taking appropriate investigative measures to determine if, in fact, the subject is the actual offender.

Such inequities already occur nationwide when people of notoriety or prestige are suspect of crimes.

For example, while serving as an officer, I was privy to a case where a City Council representative neglected to watch their toddler grandchild. After realizing that they had not seen the youngster for some time, they found their grandchild floating dead in the unsecured backyard swimming pool. While any average citizen would have been charged with child neglect under the state statutes, this City Council rep was not, the police calling the incident an ‘unfortunate accident.' At the time, it was politically incorrect to think of such esteemed persons as suspects and offenders.   

Merriam-Webster’s (2017) dictionary defines a suspect as: “regarded or deserving to be regarded with suspicion.” Notice this definition does not indicate that a suspect is a perpetrator or offender. It merely shows that the person is under suspicion. Suspect is exactly what they are if police are considering the individual as a person possibly responsible for the crime.

Another contingency concerning the issue of changing this terminology stems from the protocol of court procedures. The investigating officer needs to carefully weigh at what juncture during the investigation the subject becomes a suspect, and then the perpetrator, during a criminal investigation with an identified offender. During trials I was often asked by defense counsel, “Detective, at what point in the investigation did you consider my client a suspect?”

Clarity of the individual’s role in the investigation becomes inherently important as individual rights may automatically attach to the suspect at certain points in any given investigation to include the need for Miranda in given statements and search warrants for seeking evidence.

For example, let’s say an officer is investigating a burglary in the neighborhood where the suspect broke out a rear basement window to gain entry into the house. The officer, who may be privy to information that a convicted burglar was recently released back into the community following a jail sentence, where the subject’s m.o. is kicking out basement windows to gain entry. The officer has no physical evidence to establish probable cause to charge the suspect, but would logically suspect them of the crime until further information put the suspect in or out of the offense.

If later that same day of taking the report the officer saw the suspect walking down the street in the neighborhood and stopped them to ask questions, a host of rights may attach to the suspect. The courts would wrangle over whether or not the officer’s actions were a stop or detention, which would dictate if and when Miranda rights would attach.

Imagine the officer having such an encounter with the suspect on the street. Here are two possible ways documenting the encounter in a police report narrative could occur:

“While on patrol, this officer observed community member Danny Dirtball* walking in the neighborhood and spoke with him about the recent burglary.”

or

“While on patrol, this officer observed suspect Danny Dirtball* walking in the neighborhood and spoke with him about the recent burglary.”

  

The former example sounds like a casual encounter and conversation between an officer and a law-abiding citizen. Where, the latter gives notice to other officers, supervisors, attorneys, juries, and judges, who are reading the report, that the subject is a suspect, and that in determining whether Constitutional rights were applicable in the given instance due consideration needs to be considered.

PC has indeed become a way of life for many in our society. I understand the need for one to choose their words as so not to offend others. I would expect this courtesy extended to me. However, I believe that exercising PC in regards to re-framing the nomenclature of suspects softens one's perception of an individual and their involvement in criminal activity to a point where Constitutional rights may be overlooked or denied.

The Seattle Police Department should give this idea more thought before implementing it into practice.

*Danny Dirtball is a fictitious name used for the example.

References:

Merriam-Webster (2017). Suspect. Retrieved from

https://www.merriam-webster.com/dictionary/suspect.