Every November at MIT’s Splash program I teach a class called Know Your Rights. The class covers the fine points of the police-citizen interaction and teaches students what to do and what to expect if they encounter a police officer at home, at school, on the street, or in a car. I always invite my students to contact me if they have legal questions later.
This year, I have been inundated with excellent questions concerning the deaths of Mike Brown and Eric Garner, and some of the related legal principles.
I will try to answer three of those questions here.
First, what is the difference between a trial and an indictment? Or between a Grand Jury and a trial jury?
Second, what do I think about Ferguson, the death of Mike Brown, and the death of Eric Garner?
Third, was it lawful for the NYPD to touch Eric Garner without his consent, given that he did not have a weapon and was not assaulting the police?
Function of the Grand Jury
A grand jury is not like a trial jury. They do not hear a contested case with evidence from both sides, and they do not decide whether the Defendant is guilty or not guilty.
A Grand Jury is a secret proceeding controlled by a prosecutor, without a judge or a defense lawyer. They hear evidence selected by the prosecutor, and decide whether or not there is probable cause to charge the Defendant with a crime.
If the Grand Jury decides that there is probable cause to issue a charge, that decision (and the corresponding charge) is called an “indictment” or a “true bill.” If they decide that there is no probable cause, the decision is called a “no bill.”
Grand Jury procedure differs a lot by state, but in many states an indictment is required to charge a person with a felony (such as murder or manslaughter). If you want to know more about how they work (and how they don’t), I recommend the following articles:
The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich, by Pope Hat (this is a hilarious law blog that I recommend in general).
England Abolished Grand Juries Decades Ago Because They Didn’t Work from Public Radio International.
On Ferguson, Mike Brown, and Eric Garner
I am not going to tell you what I personally think of Ferguson, or Eric Garner, or any of the rest. I will give you a few articles to read and a few questions to think about. If you think that you have come to an easy answer to any of these questions, I recommend that you discuss it with a friend or family member whom you are comfortable disagreeing with, and see what they think.
Ferguson and the Cult of Compliance by Professor David Perry.
Being a Cop Showed Me Just How Racist and Violent the Police Are. by Reddit Hudson.
It’s Past the Point of No Return, a New York Magazine interview with an NYPD officer.
Protest in a Liberal Democracy by Professor Brian Martin.
The Parable of the Polygons by Vi Hart and Nicky Caes.
Questions to consider and discuss:
- What rule should we teach police officers that they should use to determine whether they are allowed to use deadly force in a particular situation? Keep in mind that the rule should be easy to apply in a split second, without consulting a book or a superior officer.
- Should the police ever be allowed to use deadly force to apprehend a fleeing suspect? Does it depend on what the person is suspected of?
- How much danger does an officer need to be in before they can use deadly force in self-defense? Should they be required to try retreating or de-escalating before they use force?
- Okay, so you’ve got a rule. Now, there will be situations where an officer used deadly force, and people disagree about whether it was authorized or not. In fact, people even disagree about what happened. And there will be circumstances where there are honest mistakes by officers who really thought somebody was pointing a gun at them, when that person really wasn’t. How sure do we have to be, before we will agree that criminally prosecuting the officer (that is, putting them in jail for a while, branding them as a felon for life, and never letting them be a police officer again) is the right thing to do?
- Who decides? A prosecutor, a judge, or a jury? Should they hear from both sides first? Who will represent the pro-prosecution side? Will it be a prosecutor from that officer’s jurisdiction, who might have prosecuted cases that the officer was involved in?
- Should there be circumstances where the officer loses his or her job, or gets sued for money but doesn’t get criminally prosecuted? Where do you draw the line?
- If the officer gets sued for money, does the department pay? (The current practice is, almost always). If so, should there be other consequences for the individual officer?
- The government gave these people weapons and told them that sometimes it’s okay to use force. Under what circumstances might the government acknowledge that a use of force shouldn’t have happened, and take responsibility for it? What will that responsibility look like? An apology? A cash payment? Should there be circumstances where the government takes responsibility, but the individual officer isn’t punished?
- How will your rule impact people’s willingness to be police officers in the first place?
- How will your rule impact society’s ability to feel safe with its police officers?
On Eric Garner and the Current Laws About Use of Force
The third question was whether it was legal for the officers to put their hands on Eric Garner at all, since he wasn’t attacking anybody and didn’t have a weapon.
It appears that New York makes it a crime to sell loose, untaxed cigarettes, and that Officer Pantaleo said he was trying to arrest Garner for this crime. You might ask yourself whether selling untaxed cigarettes should be something you get arrested for at all, rather than just being ticketed or summonsed. But in New York, right now, as far as I know, you can get arrested for it.
Usually, officers are allowed to use reasonable force to arrest somebody and to overcome that person’s resistance. What is “reasonable” depends on the circumstances. Lethal force is not usually considered “reasonable.”
Another question for you to consider is when the police should give up. The “cult of compliance” article above talks about a police culture of increasing the level of force until they win, but many US police departments have historically had laws that limit their escalation. For example, many police departments will not continue a high-speed car chase unless the person they are chasing is believed to be dangerous, because the chase itself is dangerous.
Ask yourselves and discuss: what rule should limit police use of force? When should they just give up, and mark the person as wanted? Does it depend on what the person is suspected of? How do we formulate a rule that can be quickly applied in the field?
The relevant language on chokeholds is:
Members of the New York City Police Department will NOT use chokeholds. A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.
Several commentators from law enforcement have argued that the “take down” maneuver used to arrest Garner was not a choke hold at all. You can read one of the more coherent arguments on that point here.
As you’ll see in the use of force manual, there is very little commentary on specific tactics that are allowed or disallowed. However, there is a provision that says,
Whenever possible, members should make every effort to avoid tactics, such as sitting or standing on a subject’s chest, which may result in chest compression, thereby reducing the subject’s ability to breathe.
In general, the rule is that the use of force must be ‘reasonable’ and that non-deadly force should be used when possible. Of course, telling police officers that a judge or supervisor will decide later whether their use of force was ‘reasonable’ gives them zero guidance as to what they should do or not do in the field.
The question brings up an important point about what it means to say that something is “legal” or “illegal.” Usually we do not think of breaking rules at your job as “illegal,” even if you work for the government. And when you ask whether something is illegal, you are actually asking a few questions. Is there a law that says it’s not okay to do this thing? Is that a criminal law that imposes a jail sentence or fine? If not, what happens to people who break the law? Will a police officer arrest a person for doing this thing, even if there isn’t a specific law about it? Will a judge uphold such an arrest? Will a jury convict the person arrested of the crime that the police charged them with? Will an appeals court say that the conviction was valid?
Comments are open for discussion below.