Police shot Charles Kinsey. Video showed him on the ground with raised hands.
Is anyone accountable when police murder? The answer might be no. Washington State formed a task force to reduce law enforcement-involved shootings. The law that protects police officers from criminal charges is dividing task force members. Some believe in law enforcement immunity, others claim it gives police officers a free pass to kill.
The Law Protects Police
A 1986 state law effectively shields police officers from work related murder charges even when they were wrong. Prosecutors cannot charge officers with murder absent a showing of malice or evil intent. The law protects officers who use deadly force even when it’s deemed reckless or negligent, said Washington Association of Prosecuting Attorneys Executive Secretary, Tom McBride.
Recklessness is when an officer knows that what he is doing puts innocent people at risk, but he takes the action anyway. Imagine a case where an officer empties her gun into a crowd of innocent people just to get one bad guy.
Negligence is where an officer simply didn’t do what a reasonable officer would have done. These scenarios include, for instance, officers shooting people holding cell phones and not weapons. Perhaps the officer should have known better, and should have acted differently.
Currently, it’s not enough to allege that an officer was reckless, or negligent. Prosecutors have to prove that the officer acted with malice. That means that the officer basically intended to do wrong in shooting someone. This can be hard to prove. If an officer simply says that he felt threatened, then no jury is likely to find malice. As a result, officers in Washington State are basically immune from prosecution for wrongful homicides committed on the job.
Advocates Want Protection from Police Murder
Reform advocates on the task force pushed for deleting the malice requirement. Prosecutors could charge reckless or negligent officers if the malice requirement is removed. “The malice requirement is an impossible threshold for prosecutors to meet”, stated a committee member. Additionally, prosecutors and police officers often see themselves as teammates. Prosecutors rarely charge one of their own. Unfortunately, African Americans are often on the losing end of police interactions. They are also more likely to helplessly watch as police officers get away with bad behavior.
An analysis by the Seattle times last year found that between 2005 and 2014 police officers were disproportionately likely to kill members of the black community. Prosecutors brought homicide charges against an officer in only one of 213 shootings. The officer fired his gun through the back window of a car killing the driver. A jury acquitted. They could not find that the officer had acted with malice.
At least one task force member argues that changing the statute and holding officers accountable would build trust between law enforcement and minority communities. Others urged lawmakers to maintain the law as written. The Kennewick Chief of Police, Ken Hohenberg, doesn’t believe that any change in the law would help. Making police more accountable “won’t help reduce violent interactions involving police”, he said. “More police training and better information are the answers to inappropriate violence”, Hohenberg suggested.
A member of the panel representing the Black Law Enforcement Association of Washington, Cynthia Softli, voiced concerns that removing the malice requirement might put officers at risk. Potential criminal charges could distract officers, according to Softli. That distraction might in turn slow officer reactions in dangerous situations.
The task force is made up of lawmakers, representatives of police, community groups and legal organizations. They will recommend changes for lawmakers to consider. A campaign to remove the malice and good faith portions from Washington’s law is gathering signatures in hopes of sending an initiative to the Legislature next year. Supporters of Initiative 873 gathered at the Capitol on Monday to call for change to the malice requirement. They seek greater police accountability.
Some police representatives said that officers should not be punished if they killed someone in good faith. Others said they were concerned that judging good faith can be as subjective as determining malice. No other state has malice or good faith requirements, but a few have subjective standards, said Jeff Robinson, the director of the Center for Justice at the American Civil Liberties Union who made the presentation. Robinson captured attention while showing videos of police killings in other states, including the 2014 fatal shooting of Laquan Mcdonald, 17, in Chicago. McDonald was wielding a knife but walking away from officers when fired. Officer Jason Van Dyke shot McDonald 16 times and is facing first-degree murder charges.