Homicide charges against police officers are rare

The indictment marked the first time a law enforcement officer had been charged with an on-duty death since 1991, when a Boston police officer, James E. Hall, was arrested and later convicted of involuntary manslaughter, in the killing of Christopher Rogers, an unarmed Dorchester 16-year-old. Hall had three excessive-force complaints […]

The indictment marked the first time a law enforcement officer had been charged with an on-duty death since 1991, when a Boston police officer, James E. Hall, was arrested and later convicted of involuntary manslaughter, in the killing of Christopher Rogers, an unarmed Dorchester 16-year-old. Hall had three excessive-force complaints under investigation at the time.

But since then, every police killing in Massachusetts has been found legally justifiable. Many have led to more training for officers, and some to civil settlements. But in every case, usually because prosecutors find that officers acted in self-defense, there were no criminal charges.

Massachusetts is not an outlier in rarely using criminal charges against police officers who have killed on the job. Over a 15-year period, 104 state or local law enforcement officers in the United States were charged with murder or manslaughter, according to a 2019 study from Philip M. Stinson and Chloe Wentzlof of Bowling Green State University. Of those, 35 were convicted of a crime related to an on-duty shooting. Four were convicted of murder.

This summer, as protesters filled streets nationwide calling for change after the killing of George Floyd in Minnesota, the authorities released a flurry of murder indictments: against Derek Chauvin, the officer who knelt on Floyd’s neck; Garrett Rolfe, an Atlanta police officer accused of shooting and killing Rayshard Brooks; and, last week, Shaun Lucas, an officer from Wolfe City, Texas, accused of shooting Jonathan Price as he walked away.

But whether those charges represent a nationwide shift is still unclear, said Howard Friedman, a Boston civil rights attorney who has represented the families of people who died in police custody. He noted that Massachusetts has fewer such deaths than most other states: 35 people have been shot and killed by police here since 2015. Tennessee, which has slightly fewer residents, had 148 deadly police shootings in the same period, according to a Washington Post database of fatal police shootings.

When he meets with the family of a person killed by a police officer, Friedman said, he tells them criminal charges are highly unlikely.

“I have to prepare them for the fact that they might not be treated very well,” he said. “Things are different. If their loved one was shot by a civilian, they might be treated very differently.”

A former Suffolk County district attorney, Daniel F. Conley, said that in his 16 years as DA, he never determined there was a case in which an officer killing a civilian merited criminal charges. No such cases were brought in front of a grand jury. In each one of about 15 cases, he said, his office thoroughly looked at the facts, interviewed witnesses and officers, reviewed video footage, and determined the homicide was justifiable because it was committed either in self-defense or in defense of another.

“Of all the cases that I handled I didn’t feel I could, in good faith, present criminal charges,” he said. “ . . . Our job was simply to apply the law as it was given to us by the courts. The decision sometimes makes itself.”

But building the public’s trust is key in these investigations, said Conley, now an attorney with the Boston law firm Mintz Levin. When he became district attorney, the office would often conclude such investigations with a one-sentence press release saying that, after a full and fair investigation, prosecutors had decided not to bring criminal charges.

“This is how it was done across the board, across the country. I don’t think there was any sinister let’s-hide-the-ball-here,” Conley said. “But we kept the details close to the vest.”

Over time, he said, the office started releasing longer reports. Conley invited the family of the person who was killed to meetings at the start and end of each investigation, to explain the process and hear their concerns.

“Every situation is unique,” Conley said. “These cases have to be analyzed with the perspective of an officer on the street, without the benefit of 20/20 hindsight.”

Drauschke and other officers went to Greenough’s apartment Feb. 3, 2018, seeking to arrest him on domestic battery charges, according to Middlesex District Attorney Marian T. Ryan’s office. They had responded to another call from his roommate the previous day. Drauschke found him sitting in a car behind the apartment.

Greenough, who was white, got out of the car with his hands in his sweatshirt pocket, and yelled to Drauschke, “Shoot me, shoot me,” prosecutors said. Drauschke did not call other nearby officers for assistance, prosecutors said, and fired twice.

Drauschke’s indictment came 2½ years after Greenough’s death, following a judicial inquest, a hearing in which a judge can determine a person’s manner of death. It was the first inquest Ryan had ever sought as district attorney. A Woburn District Court judge listened to the evidence and ruled that he took “unnecessary risk” and that “his actions were wanton and reckless and amounted to criminal negligence.” Drauschke is scheduled to be arraigned Oct. 14.

Bringing criminal charges against officers who kill while on duty can be legally complex, said professor Rosanna Cavallaro, who teaches criminal law and evidence at Suffolk Law School. For one, the district attorneys who would bring such charges rely on police officers’ testimony in other cases.

Grand juries, which under the guidance of district attorneys decide whether there is enough probable cause to bring charges, have the benefit of looking at the evidence later, with a cooler head. She likened their review to watching events unfold on a film strip, moment by moment.

“If you imagine this unfolding like a film strip, frame by frame, there might be a moment of decision: Do I need to fire? And then another moment of, do I need to keep firing? Do I need to reload?” Cavallaro said.

In a case like Taylor’s, in which officers fired many shots, some of their acts may be justifiable and others may not be, she said.

If a case does make it to a trial jury — through the DA’s review, a grand jury indictment, and the pretrial process — proving that an officer was not legally justified in shooting a person can be difficult.

It’s a question of “imperfect self-defense,” she said: Was the officer truly in fear for his or her life? And, if so, was that fear reasonably held?

“The jury is going to come away essentially with that question,” Cavallaro said. “Having listened to all this evidence from all points of view, and the lawyers’ spin, do I think that this is a criminal act? Or a there-but-for-the-grace-of-God, this was a horrible act but nobody should be blamed?”

Gal Tziperman Lotan can be reached at [email protected] or at 617-929-2043.

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