By: Lisa M. Hayes – Confluence Daily is your daily news source for women in the know
I have spent a lot of time focused on police accountability and the use of deadly force. I’d like to say the unlawful use of deadly force. However, in all fifty states, a police officer can use deadly force in any circumstance, reasonably justified or not, and get away with it.
In any state in the US, a cop can kill an unarmed, or under-armed suspect, walking away without even so much as internal disciplinary action simply by saying he or she was afraid. The laws in the US are universally written to protect law enforcement in use of deadly force incidents. There is no state in the US whose laws regarding the use of deadly force meet the international standards on the subject – not a single state.
The “fear” defense is a near-perfect defense in any use of force incident. These laws use words like “malice” and “good faith” to skew the laws in favor of perpetrators with badges. The laws are hinged on an officer’s state of mind above what an officer does. You can’t prove or disprove a state of mind.
While these laws that protect killer cops are color blind, make no mistake, the killer cops that are protected under these laws are not. People of color are disproportionately killed by the police. Native Americans, per capita, are the more likely to be killed by the police than any demographic. However, when you’re looking at the sheer numbers, black people, especially black men are consistently at a grave and disproportionate risk for being killed by cops.
And it’s complicated. Yes, there are overtly racist killer cops. We’ve all seen the videos that prove that. However, there are also cops on the job with weapons in their hands who are afraid of black men because they have not addressed their internalized racism and biases. This is harder to spot and maybe even harder to manage. These are cops who don’t think they are racist. You might know them and wouldn’t think they are racist.
However, in a split second of decision making, when those cops find themselves face to face with someone who they are unconsciously afraid of because that suspect doesn’t look like them, these cops can and too often do shoot – completely justified and protected under the laws that protect law enforcement officers who claim to be afraid. The laws do not require that an officer’s fear by justified by standards that would make sense to most people. They only require that an officer was afraid.
Some might say it’s more complicated than that. However, I’d challenge you to show me a state where it isn’t just that simple. I know this because I wrote the first of what would ultimately be two, state initiatives in Washington State to reform the laws regarding law enforcement accountability in deadly force incidents. In the process of doing so, I studied the law in all fifty states. I also studied the track records of prosecutors in all fifty states to find patterns for why prosecutors almost always take a pass at pressing charges in what should be unlawful uses of deadly force.
After two exhausting and painful years of pushing voter driven ballot initiatives, Washington State voters did pass a police reform initiative. Before that initiative become law, activist groups and law enforcement jointly agreed on legislation that would reform the deadly force laws. That cooperative agreement was challenged at the state supreme court level and was deemed to be unlawful due to a process loophole. It took an additional legislative session to finally get the voter’s wishes passed in the form of a House Bill.
Washington State’s use of deadly force laws went from being the lowest standard of accountability in the nation to what was deemed by many to be one of the highest bars in the country. The new standard in Washington state requires officers to show that they believed they were acting in good faith when they used deadly force, the new language imposes an objective test: whether another officer acting reasonably in the same circumstances would have believed deadly force was necessary.
I’ll give you a preview of how that “objective test” works: All officers, almost all the time, think being afraid, regardless of the circumstances is a reasonable cause for the use of deadly force.
Since that law in Washington State changed early 2019, no officers have been charged with deadly force crimes in Washington State. Since the passage of the new laws, cops have continued to kill. Prosecutor’s offices have continued to pass on prosecuting or even investigating officers and police departments have continued to skip over disciplining officers who kill. This is because despite the upgrade in language, the “fear defense” still floats in law enforcement communities. Prosecutors are at their core members of the law enforcement community.
This might leave you thinking changing the laws won’t fix the problem and you might be right. Changing the laws might be the least effective way to force police culture to change.
When it comes to dealing with abusive or killer cops and law enforcement agencies with prevalent and ongoing cultures of violence and racism, liability insurance companies have more influence than voters and legislators combined ever will.
While much attention has been paid to the issue of police misconduct and the subsequent attempts and failures to prosecute officers there is another lever of change most aren’t aware of. Law enforcement officers and jurisdictions are almost universally are covered by insurance policies to protect them from civil lawsuits that might arise from incidents on duty.
A lawsuit that falls in the lap of a city can be very costly, so costly in fact, that it can bankrupt a jurisdiction that does not have proper liability coverage. Law enforcement agencies are under the thumb of their insurers in ways that they do not answer to citizens.
A recent paper by the University of Chicago law professor John Rappaport detailed the effects these companies have had on police forces across America.
In Wisconsin, for example, an insurer recommended new training and supervision of SWAT teams in the Lake Winnebago area in the aftermath of two botched drug raids. In 2010, a police chief in Rutledge, Tennessee, was fired to appease the town’s liability insurer after assault allegations were leveled against him. In many other states, police forces have been asked to adopt new policies regarding body cameras, strip searches, and use of force.
Although an outside company exerting influence on local police may not seem compatible with good governance, there are certain advantages to insurers’ monitoring police departments and enforcing improvements. First and foremost, insurance companies are politically neutral.
“I think the debates about policing have become so fraught and so inflammatory,” Rappaport has been quoted as saying, “To have this big, well-heeled institution saying, ‘We’re not interested in that debate, we just want to get those numbers down’—it can make reform more palatable because it takes the electricity out.”
Insurance companies do exert ultimate authority. Loss of insurance can end a department. In recent years, cities in Illinois, Pennsylvania, Ohio, Tenessee, Louisiana, and elsewhere in California have had to disband their police departments after losing coverage. Lawsuits are the ultimate tool for forcing cultural changes in law enforcement agencies.
Civil lawsuits are also the ultimate leverage for getting a dangerous, racist, and killer cop off the streets. If a liability insurer tells a department to fire a troubled officer, the department will do so. They have no choice. If a liability insurer says they will not cover an incoming officer based on their previous history, that officer will not be hired. The department has no choice. Change will not happen at the first complaint or probably even the first lawsuit. However, when you’re dealing with a truly problematic department or officer, the stacking effect of repeating or cascading suits will force insurers to take action. It’s not personal. It’s numbers and money.
Traditionally, families of victims of police violence have depended on the criminal justice system to get “justice” and that is a statistical non-starter. Cops don’t get sent to prison for killing people. Justice is both elusive and an illusion.
I’ve worked with too many families who’ve lost loved ones to killer cops. At first, universally they want that justice. However, sooner than later they realize justice isn’t coming and it wouldn’t bring their loved one back anyway. Ultimately what they want is reform. What they want more than anything is to see to it that no other family will have to endure what they have. Criminal prosecution never results in reform. However, civil lawsuits, constructively and consistently applied, can.
If we want to stop killer cops and change dangerous police culture, we need to empower families of victims to sue both officers and law enforcement agencies. Suing police departments is nothing new but it’s less common than you might think. Families of victims are often encouraged to wait to file civil suits until after potential criminal charges against an officer are filed and resolved. The hope is if an officer is found guilty a bigger payoff is in store.
That almost never happens. By the time a family gets through that emotionally painful process, even it if doesn’t even begin, families are often ready to retreat from the public eye and justice system. When an officer isn’t charged, or even if they are, but found not guilty, it’s harder to get community support. It also becomes difficult to find an attorney who will take a civil case.
Some families feel awkward about making the loss of a loved one about money. However, even though a payout might be possible that is not the end goal of civil litigation. It’s unclear that winning a suit insulates a department or an officer against the oversight of an insurer. Discovery in a civil suit is likely to be a determining factor in an insurer’s decision-making processes regardless of the outcome of a civil suit. This isn’t all about the money. Money may be the least important element of a civil suit.
Families of victims and victims of police violence themselves should sue early and often. Communities should be prepared to respond by empowering families and victims with funds to pay the legal costs for civil litigation. Crowdsourcing fundraising for civil litigation in advance of unreasonable use of deadly force incidents may be the most proactive thing a community can do to start to apply pressure for cultural change in police departments. Undoubtedly an insurer would be more concerned about potential losses in a community they know will activate to sue without hesitation. As communities, we need to ensure the families of victims or victims themselves of police violence can sue every single time. It will always come down to money.
When an unreasonable use of deadly force happens civil suits initially feel less rewarding and than the prayer of justice through criminal prosecution. However, civil suits may be the only effective mechanism for changing a system that is rigged in favor of dangerous officers and departments. Insurance companies can do what citizens can’t accomplish by attempting to prosecute cops or change laws. It’s a backdoor. However, in reality, civil suits and insurers might be the only door we have into the heart and soul of law enforcement.
Lisa M. Hayes, Senior Editor of Confluence Daily.
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