In “Uneven Justice,” the Washington Post recently reported on a year-long study of fifty-nine incidents in the past decade in which on-duty police officers were charged with killing members of the public. The article details a number of cases across the country where police shot or killed innocent people and “got away with it” by avoiding financial liability and, in many cases, avoiding conviction or prison time. Sadly, the study results confirm what we already know— the laws and system in place favors the police, even when they use unjustified, excessive force, and race matters.

Civil Suit Against Police Department Yields Best Results

The numbers tell a tragic story, and point to the best strategy for lawyers who litigate cases dealing with excessive force by the police. Despite being charged, just eleven of the fifty-nine officers in the study were eventually convicted and jailed for their killing. The lack of ability to hold the police accountable for fatal use of excessive force partially explains why forty-six of the families of those killed by the police elected to sue in civil court. Families seek at least monetary damages for the harm done to their loved one and to the families of those killed. Thirty-two of the forty-six families who sued in civil court secured monetary judgments or settlements, ranging from $7,500 to $8.5 million, with a median payment of $1.2 million.

Regardless of whether the officers were acquitted, never charged with a crime, or convicted, the victims’ families had the same rate of success in civil cases or securing civil settlements. In other words, civil cases were more successful in holding the police accountable for their actions than were criminal cases. This is ironic, considering that the job of police is to prevent crimes and help hold the public accountable for crime. The Washington Post reports that the attorneys for the families of those killed by excessive force by police tend to proceed under a federal civil rights statute originally created to fight the Ku Klux Klan, yet another poignant irony.

It isn’t easy for plaintiffs to win these civil lawsuits. Because police officers have dangerous jobs and are charged with protecting the public, the federal law gives them wide latitude in their actions and judges their behavior with a relatively-low level of scrutiny. In civil lawsuits filed by families of relatives killed by the police, the plaintiffs must generally prove that the officers behaved unreasonably or that the police department itself acted with deliberate indifference. Of course, what is deemed “reasonable” lies in the eyes of the beholder, and the race and background of the jury, the beholders, can make all the difference. Further, in typical civil lawsuits, the standard of proof is lower, focusing instead on what the defendant “knew or should have known” or whether he or she acted with “reckless indifference,” rather than deliberate indifference. Some states impose even higher evidentiary burdens on plaintiffs; local governments in Arizona have no responsibility for a police officer’s behavior unless they had evidence that the officer was a “rogue cop” and made no efforts to address the situation.

The settlements tended to come from the police departments, rather than from the pockets of the police officers who killed. This happens for a couple of reasons. The police departments have the money to compensate the public for the loss of life while police officers generally do not, recognizing of course that no money replaces the life lost. In addition, not suing the police officer removes the possibility that the police officer and his/her spouse or family will give testimony in court about the hardship and suffering they’ve endured, testimony which can be emotional, and disproportionately damaging to the plaintiff’s case.

Justice Is Uneven and Unpredictable

The article describes a series of heartbreaking events—for example, a young mother killed for no reason, and a young, unarmed African American man shot in the back by a new police officer who mistook joshing with a sister to be domestic violence. In another sad case, Jonathan Ferrell, a young black male injured in a car accident came to a nearby house for help. Less than an hour later, he died with his hands handcuffed behind his back, having been shot 12 times in 19 seconds, when the police came to the house at the request of the frightened (white) homeowner. By all accounts Jonathan Ferrell was an upstanding and incredible person, who did all the right things for all of his short life, and, another irony, a law-abiding member of a family of sheriffs and police officers. Jonathan Ferrell’s killer was tried, and a mistrial declared. An African American member of the jury, a former constable, reported that the jury voted along racial lines. Later, a decision was made not to retry the case. To make matters worse, the officer sued the police department for backpay and for his legal expenses in defending the family’s lawsuit. The city granted the request, and he received $185,000 and remains both alive and free.

In another case, a family lost its claim when it hired a lawyer who didn’t respond to court papers. The lawyer was later disbarred, illustrating the need for victims’ families to secure good legal representation. In addition, when families receive money but the officer goes free, as happened to Jonathan Ferrell’s killer, they often don’t feel as if justice has been done.

Race Matters 

The inescapable conclusion from the study findings is that the system and the laws at times protect the police from wrongdoing. Even if a matter gets to a jury, racial prejudices and views often determine what happens. There may be some good news in sight, however: last Monday the Supreme Court heard arguments in Foster v. Chatman, a case that challenges the practice by which prosecutors commonly, deliberately, and unconstitutionally, exclude African-Americans from criminal juries. Several studies have found that interracial juries make fewer factual errors, deliberate longer, and consider a wider variety of perspectives than do all-white juries, and that in racially-charged incidents white jurors are far more likely to side against the African American involved.  Until the jury-selection process changes or the ban against discharging jurors on the basis of race is enforced, justice will indeed be unevenly and inconsistently meted out.