Friday, March 21, 2014

Bang Bang Your'e Dead

Such cries of the playground by those playing Cowboys, Indians, Cops and Robbers. Today that is a greater reality for many who find themselves on the either end of the gun.

American Police are now militarized to the point of extreme. Think the tanks you see on the news in Afghanistan or Iraq or some other war torn place are simply accoutrement's of war and the casualties are somehow a part of the conflict in pursuit of democracy? Think again, it is in the streets of America in abject opposition to the concept and principals of democracy.

When the Economist, a conservative magazine from Europe writes an article about the militarization of American Police it must be bad. It is. Day after day another article/story emerges about an innocent family whose doors are busted down, the family dog shot, an innocent killed or injured and the rise of the Warrior Cop goes unrepentant and unsupervised.

From cameras to face scanning to data mining the new technology has enabled law enforcement to observe and decide whether to shoot first and ask questions later. There is an article here about the increasing use of such tools to persecute, prosecute or simply perpetuate the notion, "do as I say not as I do." Here in Seattle this is an issue but it is not just here it is everywhere.

In Seattle we have had an off again on again off again approach to discipline when it comes to Seattle Police and violence and by violence I mean theirs. And it has the seal of Judicial approval so what could go wrong?

As for filming them well first it is okay then it not it is not okay but then it is okay. What.ever. It is the same with regards to the misconduct verdict, its on, its off, its on again. With Seattle Police I expect the one thing consistent is their inconsistency.

Judge OKs new Seattle police policy on use of force

By Mike Carter and Steve Miletich
Seattle Times staff reporters

U.S. District Judge James Robart approved a sweeping set of Seattle Police Department policy changes that describe when the use of force is appropriate and specify rules for oversight.

Beginning Jan. 1, Seattle police officers will be operating under new rules when it comes to using force.

A federal judge on Tuesday accepted a new and comprehensive use-of-force policy that will, for the first time, outline for officers when force is appropriate and when it isn’t, and provide for detailed reporting requirements.

The policy, negotiated between the Seattle Police Department (SPD) and the Department of Justice (DOJ) with the guidance of federal monitor Merrick Bobb, is key to addressing the findings of a 2011 DOJ investigation that concluded Seattle police resort to force too quickly and routinely use too much when they do. The Justice Department also found disturbing but inconclusive evidence of biased policing.

Approval of the policy by U.S. District Judge James Robart came two years and one day after the DOJ announced its findings.

The new policy marks a major milestone for the city toward compliance with a settlement agreement reached with the Justice Department 18 months ago to reform the Police Department. The agreement, which still requires additional reforms and training, provides a five-year time frame for the city to implement reforms, with an early out after three years if the city meets its requirements.

New policies addressing biased policing and the proper use of temporary police detentions are due Dec. 31.

Mayor-elect Ed Murray, who takes office next month, has said early compliance with the agreement is a priority, along with the selection of a permanent police chief to oversee the changes.

Departing Mayor Mike McGinn, who helped craft the settlement agreement, said in a statement, “We are glad to see that the Monitor, SPD and DOJ have achieved this milestone, and that they involved the Community Police Commission.”

“This is a major milestone in the reform process that will help rebuild trust and foster greater accountability,” U.S. Attorney Jenny Durkan said in a statement.

Interim Police Chief Jim Pugel issued a statement Tuesday, saying, “Today, the Seattle Police Department took another step forward in our efforts to provide effective, humane and constitutional policing to our city.”

The new 10-page policy — accompanied by nearly 70 pages of new procedural manuals — replaces a five-page policy that was in place during the time the DOJ conducted its investigation. For the first time, it defines “force” (“any physical coercion by an officer in the performance of their duties”) and advises when it can be used and how much is appropriate under the circumstances. It requires that officers report all but the most minimal use of force to supervisors.

It states specifically that officers shall “use only the force necessary to perform their duties” and “with minimal reliance upon the use of physical force.”

It requires them, if circumstances allow, to attempt to de-escalate tense situations through “advisements, warnings, verbal persuasion, and other tactics” to reduce the need for force.

When using force is unavoidable, the policy cautions officers to use only the force necessary to make the arrest, and says that their conduct before force was used may be considered by the department in determining whether force was appropriate.

The policy also requires all officers be armed with one “less-lethal” tool, such as a Taser, pepper spray or a “beanbag” shotgun, in addition to their sidearm.

The procedural manuals lay out weapon-by-weapon guidance, new reporting guidelines and the policies for the new Force Investigation Team (FIT), which will roll out on incidents involving the highest levels of force and officer-involved shootings.

In approving the policy, Judge Robart wrote in a three-page order that the role of the court and the monitor assigned to oversee the reforms “is not to dictate policies to the SPD, but rather to insure that the Proposed Policies conform to the requirements” of the settlement agreement, the U.S. Constitution and judicial decisions interpreting the city’s constitutional obligations.

“The court bears this responsibility with the utmost solemnity,” Robart wrote.

The new policy was negotiated with input from the Community Police Commission (CPC) citizens panel, with two police department representatives, created as part of the settlement agreement.

Robart noted the panel raised concerns that the policies were too long and may increase confusion about the appropriate use of force or create “trainability” issues.

But citing the DOJ’s 2011 investigation, Robart wrote that a common theme was “ambiguity in SPD policies” that left officers and supervisors uncertain about the use of force.

“The court believes that comprehensive, clear and specific policies are the most appropriate remedy for the present circumstances,” he wrote.

Robart’s order drew praise from the DOJ’s Civil Rights Division in Washington, D.C., which oversaw the investigation into Seattle police at the urging of the American Civil Liberties Union of Washington and nearly three dozen community groups.

“This policy will help ensure that the people of Seattle have a police department that respects the Constitution, secures the safety of the public, and earns the confidence of the community,” Acting Assistant Attorney General Jocelyn Samuels, director of the Civil Rights Division, said in a statement.

The findings of the Justice Department’s investigation echoed concerns that had been raised for years by Police Department auditors, a review board, blue-ribbon commissions and plaintiff’s attorneys, among others, who have complained that officers escalate to force too quickly, often relying on dangerous and damaging “impact weapons” such as batons and flashlights to subdue resistance. The report noted that many victims of these encounters are people with mental illness or under the influence of drugs and alcohol.

The report also stated that a relatively small percentage of officers are responsible for a disproportionate number of incidents where force was used, and it criticized the department for not recognizing the pattern.

Then we have even USA Today opining on the issue of our Justice system and its abject failure to provide actual justice.

We have a sick broken system. If you wonder why I am writing about this, it fits under the umbrella of "sustainability" and this is not sustainable.

Our criminal justice system has become a crime:
Glenn Harlan Reynolds
March 19, 2014

Prosecutors too often abuse unrestrained powers.

Here's how it's supposed to work: Upon evidence that a crime has been committed — Professor Plum, found dead in the conservatory with a lead pipe on the floor next to him, say — the police commence an investigation. When they have probable cause to believe that someone is guilty, the case is taken to a prosecutor, who (in the federal system, and many states) puts it before a grand jury. If the grand jury agrees that there's probable cause, it indicts. The case goes to trial, where a jury of 12 ordinary citizens hears the evidence. If they judge the accused guilty beyond a reasonable doubt, they convict. If they think the accused not guilty — or even simply believe that a conviction would be unjust — they acquit.

Here's how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a "kitchen-sink" indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a "where there's smoke there must be fire" theory even if the evidence seems less than compelling.

This is why, in our current system, the vast majority of cases never go to trial, but end in plea bargains. And if being charged with a crime ultimately leads to a plea bargain, then it follows that the real action in the criminal justice system doesn't happen at trial, as it does in most legal TV shows, but way before, at the time when prosecutors decide to bring charges. Because usually, once charges are brought, the defendant will wind up doing time for something.The problem is that, although there's lots of due process at trial — right to cross-examine, right to counsel, rules of evidence, and, of course, the jury itself, which the Framers of our Constitution thought the most important protection in criminal cases — there's basically no due process at the stage when prosecutors decide to bring charges. Prosecutors who are out to "get" people have a free hand; prosecutors who want to give favored groups or individuals a pass have a free hand, too.

When juries decide not to convict because doing so would be unjust, it's called "jury nullification," and although everyone admits that it's a power juries have, many disapprove of it. But when prosecutors decide not to bring charges, it's called "prosecutorial discretion," and it's subject to far less criticism, if it's even noticed. As for prosecutorial targeting of disfavored groups or individuals, the general attitude is "if you can't do the time, don't do the crime."

The problem with that attitude is that, with today's broad and vague criminal statutes at both the state and federal level, everyone is guilty of some sort of crime, a point that Harvey Silverglate underscores with the title of his recent book, Three Felonies A Day: How The Feds Target The Innocent, that being the number of felonies that the average American, usually unknowingly, commits.

Such crimes can be manufactured from violations of obscure federal regulations that can turn pocketing a feather or taking home a rusted bit of metal from a wilderness area into a crime. In other cases, issues almost always dealt with in civil court, disagreements over taxes for instance, can be turned into a criminal case.

The combination of vague and pervasive criminal laws — the federal government literally doesn't know how many federal criminal laws there are — and prosecutorial discretion, plus easy overcharging and coercive plea-bargaining, means that where criminal law is concerned we don't really have a judicial system as most people imagine it. Instead, we have a criminal justice bureaucracy that assesses guilt and imposes penalties with only modest supervision from the judiciary, and with very little actual accountability. (When a South Carolina judge suggested earlier this year that prosecutors should follow the law, prosecutors revolted.)

In a recent Columbia Law Review essay, I suggest some remedies to this problem: First, prosecutors should have "skin in the game" — if someone's charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we've seen little enough of that.) Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is. Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision. And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.

If our criminal justice system is to be a true justice system, then due process must attach at all stages. Right now, prosecutors run riot. That needs to change

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