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Commentary: When Grand Juries Fail, Civil Courts Should Hold Cops Liable

Jan 21, 2015

Credit Fresno State

In this edition of Valley Public Radio’s commentary series The Moral Is Ida Jones, a professor of Business Law at Fresno State, argues that civil remedies may be the only recourse to reduce the number of police killings of young African American males when criminal indictments fail to do so.

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  Grand juries decided that no one was criminally responsible for the deaths of Michael Brown in Ferguson, Missouri and Eric Garner in New York City. Their deaths are all too common examples of law enforcement shootings of young black or Hispanic men, many of whom were unarmed or stopped on suspicion of committing minor crimes. But society is harmed when police can kill without legal consequence. Since the criminal justice system doesn’t provide redress for this harm, perhaps the civil court system can.

Any decent prosecutor could convince a grand jury to “indict a ham sandwich” said New York Chief Justice Sol Wachtler. That’s because the standard for returning an indictment is relatively low-it’s reasonable cause to believe that the accused had committed a crime.

Statistics confirm Wachtler’s sentiment.  According to the U.S. Justice Department’s Bureau of Justice Statics, prosecutors’ success rate for getting grand jury indictments was 99.99% in 2010.   State and federal prosecution rates are not identical, but very similar, with New York’s grand jury indictment rate of 95% in 2012.

Yet, the prosecutor in neither the Brown nor Garner cases presented sufficient evidence to satisfy that standard. That’s especially disturbing in the Garner killing-- the medical examiner ruled his death a homicide and the officer’s misconduct was caught on video for all to see. And these aren’t isolated cases—according to the New York Daily News  New York, prosecutors obtained indictments in just 1.7% of  shootings by police since 1999. Clearly, prosecutors are reluctant to charge, and grand juries are reluctant to indict, police officers for misconduct, even in the most egregious cases.

So is there any other way to hold police accountable for their misconduct?

The answer is a qualified yes.  There’s at least partial relief possible under the civil court system. Police departments and individual police officers can be sued for money damages for wrongful death and civil rights’ violations. Those suits can result in money awards, currently less than $1 million.

However small awards aren’t enough to reduce misconduct. To change conduct, the awards must be significantly larger, police departments rather than city general funds should pay part or all of the awards, and officers involved should personally pay part of the resulting judgments. Also, officers shouldn’t be able to recover worker’s compensation for “psychological stress” as a result of the shootings, since the officers claim to be performing the duties of the job if they’re not charged with a crime.

Is a civil lawsuit the best remedy? As a society, we don’t routinely permit civil liability to substitute for criminal responsibility. But if we refuse to hold officers accountable in cases where the evidence indicates a need for a public trial on the merits, then a civil remedy is better than nothing, even though that means taxpayers will ultimately pay the bill. If civil damage awards are large enough, perhaps that will result in substantial changes in police conduct and more even handed prosecutors’ presentations to grand juries in cases involving police shootings.

The police force’s goals are to protect and serve. Deaths of unarmed people or those accused of minor wrongdoing without accountability accomplish neither goal.

The views expressed on The Moral Is are those of the author and do not necessarily represent the views of Valley Public Radio.