Shielded from Justice: Obstacles to Justice

From filing a complaint to pursuing legal recourse, the victim of police abuse is faced with unnecessary difficulties and, in some cases, concerted opposition from police officers and powerful police unions. The chances of local criminal prosecution are slim, and of federal civil rights prosecution, even for strong cases, remote.

One area where the federal role in checking police abuse recently has been the Justice Department's enhanced is its new powers to conduct investigations to determine whether there is a "pattern or practice" of abuse in particular police departments and to bring lawsuits ordering reforms to end abusive practices. (In two cases, cities agreed to implement reforms to end violative practices rather than risk the Justice Department taking a case to court for injunctive action.) And although privately filed civil lawsuits are sometimes successful, they do not provide real redress; frequently, the officer in question escapes not only administrative punishment for the offense but also, because of indemnity policies, any personal financial liability.

Police departments and citizen review units, as a rule, will not initiate an investigation into alleged police brutality without a formal complaint. Yet in all of the cities examined by Human Rights Watch, there are serious flaws in the way complaints from the public are initially received or forwarded for action. Filing a complaint is unnecessarily difficult and often intimidating, whether the person seeking to complain deals with a precinct sergeant, an internal affairs investigator or, to a lesser extent, a civilian review agency. Complainants may be met with hostile officers who do not wish to receive a complaint about a colleague. They may be dissuaded from filing a complaint by threats or other techniques. Officers receiving complaints may suggest that they do not believe the complainant, or ask intimidating questions about the complainant's criminal history or charges that may be pending as a result of the arrest that gave rise to the abusive incident. Most police departments prohibit attempts to impede or dissuade a complainant from filing a complaint, yet supervisors rarely confront or punish officers who do so. As noted above, even if a complaint is filed, often the complainant is not advised about whether it has been pursued and the results of any investigation or disciplinary sanction against the subject officer.

Criminal prosecutions are difficult and, in isolation, generally do not lead to improvement in police practices. Police abuse experts warn that when the criminal law is used as a substitute for departmental standards - that is, standards built into a police department's system of discipline and promotion - the results are almost invariably disappointing. As we argue above, stricter internal discipline is essential if a pattern of police abuse is to be interrupted. That said, however, it is clear that local prosecutors must do more to hold criminally abusive officers accountable in order to redress serious crimes, show that police are not above the law, and restore public confidence in the police.

There are many reasons why prosecutors choose not to pursue a case against an allegedly brutal police officer. The traditionally close relationship between district or county attorneys and police officers, who usually work together prosecuting criminals, militates against the vigorous pursuit of police abuse cases. Because it is hard to grand juries (bodies that review a prosecutor's evidence in a case and decide whether or not to indict) and trial juries that a police officer did not merely make an understandable mistake but actually committed a crime, local prosecutors tend to shy away from these cases. In some jurisdictions, special procedural protections for public officials (including police officers) accused of criminal behavior make criminal indictment even less likely.

When local prosecutors fail to pursue serious cases of human rights violations at the hands of the police, it is the responsibility of the federal government to prosecute. Specifically, the Criminal Section of the Civil Rights Division of the Justice Department is responsible for prosecuting these cases under federal criminal civil rights statutes (18 U.S. Code, sections 241 and 242). Yet federal prosecutors almost never pursue even strong cases, due in part to the high legal threshold required to win such cases (prosecutors need to prove the accused officer's "specific intent" to deprive an individual of his or her civil rights) and a shortage of resources (indicating that civil rights prosecutions of law enforcement officers are a low priority). Of the thousands of complaints the Civil Rights Division receives annually, it prosecutes only a handful. Although federal prosecutors claim they play a "backstop" role in prosecuting officers, it is notable that even when local prosecutors decline prosecution or do a poor job in presenting a case, federal prosecutors still fail to step in. And, despite the Clinton administration's rhetorical support for civil rights, its rate of prosecution for these cases changed little from the Bush administration's.

Absent administrative or criminal accountability, many police abuse victims or their families rely on privately filed civil lawsuits for redress. In practice, private civil lawsuits usually allow police departments to continue doing business as usual. Some victims have succeeded in obtaining compensation from municipalities, and a small percentage of civil lawsuits have forced police departments themselves toaccept liability for ill-treatment, leading to reforms in training or flawed policies. But because most civil jury awards are paid by cities, most police departments acknowledge that they do not always track civil lawsuits, though an officer's behavior may have cost a city hundreds of thousands, or millions, of dollars in payments to victims. Moreover, even when a lawsuit demonstrates serious violations, there is usually no effort by police supervisors to consider civil lawsuits in an officer's performance evaluations. In the end, taxpayers are paying at least twice for officers who commit abuses, once for their salaries and again to pay victims of their abuse, while often getting little legitimate police work or protection from them.

When all of these systemic shortcomings in dealing with abuse by police officers are combined, it becomes understandable why officers who commit human rights violations have little reason to fear they will be caught, punished, or prosecuted.

International human rights treaties and guidelines set out standards for the conduct of law enforcement officers. The International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment protect the right to life and prohibit torture, cruel, inhuman or degrading treatment; both treaties have been ratified by the United States. There are also internationally agreed-upon standards regarding the use of force and firearms by police officers. For example, the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990, provides standards on recruitment, training, and the use of force. It calls for proportionality in the amount of force used when required, the adoption of reporting requirements when force or firearms are used, and for governments to ensure that "arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law."

International human rights monitoring entities have expressed concern over the problem of police abuse in the United States. For example, the Human Rights Committee, which is the international body charged with monitoring compliance with the provisions of the ICCPR by the U.S. and other States parties, concluded in 1995: "[T]he Committee is concerned at the reportedly large number of persons killed, wounded or subjected to ill-treatment by members of the police force in the purported discharge of their duties." Following a 1997 investigation into killings by police in the U.S., focusing on New York City and Los Angeles, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions expressed his concern over reports of violations of the right to life as a result of excessive force by law enforcement officials and stated his intention to continue to monitor this issue closely.

via hrw.org

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