The Atlantic: Prosecute the Police

This piece was originally published in The Atlantic and can be found here.
The American criminal-justice system rests on the principle that no one is above the law, and certainly not the police officers who are entrusted to enforce it. But someone seems to have forgotten to explain that to the police.
Police brutality, much of it directed at black Americans and other people of color, has long been a part of American history. And now, thanks to the increased presence of cameras, more of the public is witnessing the violence—and its brazenness—for themselves. The police don’t seem to care who sees them. This attitude was on full display in the Minneapolis police officer Derek Chauvin’s killing of George Floyd, in view of one bystander who was recording him with a cellphone camera and many others who were imploring him to stop driving his knee into Floyd’s neck, which he did for nearly nine minutes. Police officers throughout the country then reacted to the nationwide protests that followed Floyd’s death by engaging in unabashed assaults—many of them televised—on members of the public, including attacking reporters, driving two police cars into a crowd of demonstrators, pepper-spraying protesters in the face, and shoving a 75-year-old man to the ground, leaving him bleeding from a serious head injury.* Federal law-enforcement officers also joined in, opening fire with tear gas and rubber bullets into a crowd of lawfully assembled demonstrators (and journalists from all over the world) in front of the White House, possibly at the direction of the attorney general.
I prosecuted police for misconduct at the Justice Department for 15 years, until 2017, and while my colleagues and I won many difficult convictions, the shamelessness of these recent events has driven home to me that we—and our state and local counterparts—should have tried to win many more, even before the advent of President’s Donald Trump’s open encouragement of lawless policing. Prosecutions send a message, in a way that nothing else can, that police officers will risk significant personal consequences (like a prison sentence) when they violate the laws everyone else is required to obey.
Openly lawless behavior by police officers thrives on their belief that they have a license to be brutal and that no one will hold them accountable for their actions. The filing of state charges against Chauvin and his three alleged accomplices—and the announcement of a federal criminal investigation into George Floyd’s death—are an important step toward correcting this often-deadly belief system. But this sort of prosecution needs to be much more widespread, and not only for the incidents that draw public rage. That’s largely because police officers have grown accustomed to the idea that even if a few cases are prosecuted, only the most egregious ones will ever see a courtroom, and even then a jury might not convict. Police officers have seen high-profile acquittals in enough cases, including Philando Castile’s in Minnesota, and few-enough prosecutions overall, to support the calculus that their lawlessness doesn’t carry much personal risk. And as we can see, the behavior that calculus fosters threatens American democracy.
Of course, prosecutions of individual bad actors (or groups of them) alone will never be enough to quell racist and authoritarian policing, which is not a “bad apples” problem but a systemic one; we need comprehensive criminal-justice reform for that. But they are an important tool that neither state nor federal prosecutors have ever used to their fullest extent. There are many reasons for this. One is that too many prosecutors identify and are in active partnership with the police. A starting place to change that would be to create prosecution units in every jurisdiction that are independent of police departments and specialize in prosecuting police misconduct.
But even prosecutors with an interest in fighting police abuse (myself included) can be too hesitant to bring police-misconduct cases, especially when the bad conduct unfolds quickly or doesn’t result in a serious physical injury. For example, prosecutors often decline to charge violent shoves like the one inflicted on Martin Gugino by officers of the Buffalo Police Department, or similar conduct such as punches, kicks, or slams into walls, doors, or the ground, especially when the resulting injuries aren’t severe. Existing laws with difficult burdens of proof (and which are indeed in need of reform) are one reason. Another is that prosecutors often substitute their own judgment for that of a jury; that is, they decide against bringing charges in certain cases not because the conduct isn’t criminal, but because they assume a jury won’t find the evidence compelling enough to convict. These decisions are by no means easy, but this overly self-defeating approach obviously isn’t working and needs to change now.
Prosecutors’ most fundamental duty is not to win convictions, but to seek justice. This is the moment for them to embrace that fully by aggressively bringing cases that address the broad scope of police violence and misconduct—the pepper-sprayings, beatings with batons, violent shoves to the concrete, and baseless arrests—that happens regularly.
Based on my own experience, I believe that prosecutors have the ability to make an immediate positive impact under the laws America already has, especially while the country awaits broader reforms that may take months or years. If prosecutors do so, they will find that their work will improve things in three significant ways.
First, prosecutors will shape the public’s understanding of what constitutes police misconduct, and why preventing it is vital to a democratic society. Of course, prosecutors should never bring a case simply to make a point and are obligated not to charge a police misconduct case unless there is evidence sufficient to prove that the officer’s actions are legally unjustified, even in the face of public outrage. But when the evidence fairly meets the elements of an offense, prosecutors are not mere functionaries who enforce the will of legislatures. They have the ability to use their charging decisions to shape the public’s view of the law. Most crucially, they can promote the message that police violence is fundamentally an abuse of power, and that all abuses of power by police officers are serious. When prosecutors limit their oversight of police officers to cases involving death or severe injury while ignoring other uses of excessive force, they send the message that mere abuses of power by police officers are no big deal, and something people who interact with the police are required to accept.
By treating all provable incidents of excessive force as worthy of criminal charges, prosecutors can normalize the idea that the rule of law is damaged anytime police officers abuse their badge and violate their oath of office, and that everyone should care anytime police officers act as if they are above the law. It also has a preventive effect because today’s “harmless” action in which no one dies could be tomorrow’s murder. In my own cases and many others that I supervised, I found that jurors responded favorably to the idea that the most important question before them was whether the officer had followed the law, and that they would indeed vote to convict even in cases where the officer didn’t inflict a severe injury.
Second, and relatedly, by bringing a higher volume of meritorious cases that reflects the full scope of police misconduct, prosecutors can foster the public’s investment in enforcing constitutional rights and statutory protections. Prosecutions give the members of the public who participate as grand jurors, trial jurors, and witnesses the opportunity to take ownership of the Constitution and laws, which in turn intensifies their belief in the principle that no one is above the law—which they take into the community and share with others. And the evidence is strong, especially in this moment, that the public is hungry for that opportunity. In my travels around the country to enforce the federal law against police violence, I met people in all walks of life who rejected the idea that those who wear badges and exercise vast power on behalf of the state are themselves above the law—even when their victims were people who had themselves committed serious crimes. And more often than not, and notwithstanding our country’s long history of jury nullification in law-enforcement cases, when I asked jurors to apply the concept that no one is above the law to indict or convict a law-enforcement officer, they did.
Third, prosecutors can win these cases—even under our flawed existing laws—and impose a greater measure of accountability. I have done it myself—and seen it done—many times. Police officers have committed numerous assaults and other wrongful actions in recent days that look like crimes even under even the most stringent standards, and tough burdens of proof should never alone be an excuse for declining a case that meets the elements of an offense.
There are many excellent summaries of the constitutional provisions and laws governing police-misconduct cases and the difficulties associated with using them. In general, to convict a police officer of a crime for using force associated with his job, prosecutors have to prove that the force was unreasonable under the circumstances and that the officer acted with whatever level of intent the charging statute requires. The federal statute has the most onerous intent standard: proof that the officer knew that what he was doing was wrong and did it anyway.
Police officers do get the benefit of the doubt that their perceptions and judgments are reasonable and not knowingly wrong, especially in dynamic situations requiring “split-second judgments.” But it’s a prosecutor’s job to explain to jurors that police officers are trained professionals who are expected to make judgment calls and manage risks reasonably. While many police officers and their lawyers will respond to a criminal charge by arguing that they lose their capacity for reason when faced with chaotic circumstances or when they experience fear, the law doesn’t allow them to throw reason out the door. And facing those kinds of circumstances is their job.
Most police officers are well aware that they can’t lawfully deploy neck holds on people arrested for property crimes who aren’t posing a threat even for one minute, much less nine. They know that they can’t lawfully fire tear-gas canisters and rubber bullets at people who aren’t posing a threat to themselves or someone else. They know they can’t pull down a protester’s mask and spray him in the face because they’re angry, and that they can’t walk up to people and arrest them without probable cause. They also know that they are required to make distinctions between lawful protesters and those who truly pose a threat, and that they can’t take indiscriminate action before trying. At a minimum, juries should be given the opportunity to decide that officers don’t have the judgment their profession demands. And prosecutors can educate jurors to be skeptical when professional police officers claim they lack that judgment.
More prosecutions aren’t a stand-in for broader reform. But they are a tool we could do much more with—and they are a tool we have right now.