Jenny Durkan, formerly a U.S. Attorney from Seattle, offered some insights recently, in the wake of the Ferguson Grand Jury decision to not charge Officer Darren Wilson with any crimes related to the shooting death of Michael Brown, about why it is hard to secure any sense of justice when police officers have the appearance of being criminals. “I know firsthand,” she writes, “how difficult it is to prosecute police officers.” And then she recounts a really awful period in the history of the Seattle Police Department, a force whose misconduct demanded and received federal attention, a story that is still playing out, a hyperdrama that includes the police complaining that they cannot do their jobs properly and safely without excessive force.
There comes a point at which some might argue that of course the police are going to fight for every last scrap of force, and it really is properly arguable in the context of how the laws of our society operate and intermingle with diverse customs. Trying to identify a threshold between what is tacitly known and accepted—officers can customize their incident reports, omitting or rearranging details as they please to make for a more prosecutable narrative, and the state is allowed to destroy the evidence that would support or contradict those narratives—is an abstraction both peculiar and common. It is customarily inappropriate to speak ill of the police in any terms, which is its own bizarre question insofar as we should not hold our breath for any explanation of just how one applies to become black.
Consider, briefly, a counterpoint: Meanwhile it is somehow customarily acceptable to disparage things that people are by nature, such as “dark-skinned” or “female”. Yet the things people choose? Some of these things are somehow off-limits, like law enforcement or Christianity. The truth of the matter is that there are bad cops, and these can inflict terrible, horrifying outcomes on other people. But a culture of privilege exists around law enforcement; consider Ms. Durkan’s recounting of a hideous chapter from Seattle:
Things reached fever pitch when Seattle police officer Ian Birk shot and killed John T. Williams, an unarmed Native American woodcarver. Williams was walking on a downtown Seattle street, tool in hand. As he crossed the street in front of a police car, the officer got out, followed Williams and ordered him to drop his knife.
Just seven seconds later, when Williams failed to comply, the officer shot him multiple times. Later, that officer testified he felt threatened.
Like the shooting of Michael Brown, this case went to local and state authorities for review of possible criminal charges. In January 2011, a local inquest jury found that the officer was not in danger, and that Williams (who had hearing impairments) did not have adequate time to drop his knife.
But a majority of jurors also found that the officer did believe Williams was a threat. They made this seemingly contradictory ruling because the state sets a very high legal burden for prosecuting police. Under state law, the prosecutor must prove an officer acted with malice and without a good faith belief the shooting was justified. There was insufficient evidence to meet that standard, so the local state prosecutor determined state charges could not be brought.
Many in the community protested the decision and called on federal authorities to act.
My office joined the DOJ Civil Rights Division to conduct two investigations: a criminal civil rights probe, and a separate broader look at whether the police were systematically using force in an unconstitutional way. (This is happening right now in Ferguson too.)
After looking at the facts, we concluded that we couldn’t bring criminal civil rights charges. Federal law sets a very high bar, and essentially requires proof beyond a reasonable doubt that an officer intended to deprive a person of his civil rights. Evidence that an officer feared for his life or acted according to training could defeat such a case. It is exceedingly difficult to prove such specific motivation. On the one hand, this is okay — we want police to be able to make split second decisions necessary to protect us. But we also want to ensure that deadly force is used only where necessary.
In a broader context, her account is not without its merits as concerns the Ferguson discussion. To the other, though, it highlights a glaring segregation in how the law views and thus is applied to different people.
Durkan’s explanation is essentially a slightly more verbose reiteration of what the people were told at the time, that the state would be unable to overcome the presupposition of good faith. But here is the thing: Not only does nobody else get an internal review, speak nothing of an internal review that is traditionally so shoddy that it is subject to a second layer of review, and the city attorney can bury those reports if he chooses, but it was also found that Officer Birk perjured his incident report and manipulated physical evidence. What, exactly, are people supposed to think when the burden of good faith is too great to overcome for perjury and subversion of justice? Seriously? He lied in good faith?
The Ferguson debacle is a spectacular episode in a perpetual tragedy. It will happen again. And when amid every other question that remains there stands out the peculiarities of how this grand jury was conducted, it is hard to see how the course of justice had anything to do with itself. These layers of protection can be said to be important in keeping the police from wasting all their time answering complaints from everyone they ever arrest, but this is the price. This is what we have to do in order to accomplish that. Wearing a law enforcement badge seems to require unbound extraordinary protection under the law.
How is public anger about this situation so poisonous that we will find any excuse to denounce it? In a society that seems to pay more attention to who is upset about the prospect of health insurance than the wars it is involved in, should we wonder that a substantial, complicated issue like the subversion of justice from within law enforcement is disdained?
It is a Damoclean paradox, and yet the edge that cuts the thread seems what Americans prefer. It is always easy to campaign on law enforcement; it is very difficult to campaign against excess therein. The political generalizations effectively amount to a with us or against us attitude, and absent from that discussion is what the blue wall protects. If that something is the proverbial technicality that would free an otherwise obviously guilty, dangerous suspect, society is often willing to pass that nod and wink. But at the point that we must invent extraordinary process under the law and insurmountable phantoms of good faith in order to protect law enforcement officers while they endanger society, yes, it is inevitable that some will notice, and it is just as certain that some will actually say something about the point.
Who else gets the special processes that the police get? And at what point are those extraordinary protections under the law abusive?
Nor is this new. This just seems to be how it goes. But must it really be this way?
What are we going to do about this?
Wuerker, Matt. “The color of justice”. Daily Kos Comics. 27 November 2014.
Durkan, Jenny. “As a federal prosecutor, I know how hard it is to charge officers like Darren Wilson”. The Washington Post. 24 November 2014.
Herz, Ansel. “Federal Judge Throws Out Lawsuit by SPD Officers Against Use of Force Reforms”. Slog. 20 October 2014.
“What Happened in Ferguson?” The New York Times. 25 November 2014.