Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

Excuses and Examples: How Cops are Prosecuted

Adam Banner - Tuesday, March 22, 2016

The media has been overflowing lately with stories of police brutality, unjustified use of force, and abuse of power. There is no question that when an officer of the law abuses his or her authority, takes advantage of those he or she is sworn to protect, or inappropriately and unjustly resorts to violence, everyone suffers--the victims of police brutality, the public who loses faith in its protectors, and the good law enforcement officers who are cast under suspicion because of their less ethical counterparts.

So when a law officer acts outside of his or her lawful duties, how should prosecutors pursue those cases? Should states make exceptions for those officers, creating excuses why such behavior was appropriate under the circumstances? Or should they relentlessly pursue officers accused of misconduct, making an example of them?

It seems that each method might have an advantage. Justifying a cop's actions might emphasize the dangers law enforcement officers face and show that those accused of misconduct might simply be misunderstood. On the other hand, dogged prosecution might reinforce public trust in the system as a whole, demonstrating that abuse of authority by those sworn to protect and to serve will not be tolerated.

Of course, each case is different, and prosecutors must handle these cases delicately, regardless of the final outcome.

For example, one of the most startling cases of lethal force by a law enforcement officer was the police shooting of Tamir Rice, a 12-year-old boy holding a toy gun on a playground swing. According to reports, a witness called 9-1-1 to report someone ("probably a juvenile") waving a gun ("probably a fake") and pointing it at people. The caller, though fairly certain it was a kid with a toy, couldn't be sure, and was intimidated enough to call police. 

For some reason, the dispatcher failed to relay the information about the possibility of the suspect being a juvenile with a fake gun. When officers arrived, they found the 12-year-old boy sitting in a swing with the "gun." Within seconds of arrival, Officer Timothy Loehmann fired his service weapon, killing Tamir Rice--a kid with a toy gun.

The case is tricky--police were allegedly told that there was a man with a gun at the scene. The toy gun Rice held had its orange safety tip removed. So it could be reasonable that the responding officers feared for their safety.

Yet instead of just investigating the shooting and clearing the officers or charging them as evidence deemed appropriate, the prosecutor actually shifted the blame to the boy. He was "bigger" than a typical 12-year-old--because he looked older, then he should reasonably know that he might be treated as older. He removed the safety tip identifying the gun as a toy, and he had been warned that his fake gun was scaring people--he should have known that officers would believe it to be real and kill him. 

Never mind the fact that the officer fired within seconds of arriving. Never mind that the officers did not follow protocol when they pulled up too close to the suspect. Had they given themselves an extra 100 to 200 feet between themselves and the suspect, they would have also given themselves a larger window of time and safety to adequately assess the situation.

No, these things don't matter, according to the prosecutor, because a 12-year-old boy should be expected to think like an adult and anticipate all possible responses. 

Maybe the responding officers did act appropriately, given the information they had. Maybe they did not. But shifting the blame to a child is an egregious act.

Although instinct may be for one law enforcement officer to cover for another, thereby keeping the "shame" out of the public eye, sometimes the best recourse when an officer is accused is to relentlessly pursue justice. In the case of Oklahoma City police officer Daniel Ken Holtzclaw, accused of raping multiple women while on duty, prosecutors went after him vigorously. Police investigated, turned up multiple victims, and went after Holtzclaw with dogged determination. There did not seem to be any sort of cover-up. Instead of hiding Holtzclaw's acts under the guise of not wanting the public to view the OKC police through that lens, they held him up to public scrutiny and prosecution, as if to say, "This is not us. This is not what we stand for. We will not allow this to go unpunished."

With the media reporting on unjustified use of force by police  Holtzclaw's case is one of the few in which the public sees justice in prosecuting a bad cop. In order to restore trust in law enforcement, prosecutors must serve justice without excuses.

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