Should Police Investigate Themselves in Cases Like Eric Garner? One State Has A Unique Solution

December 4th 2014

Mike Vainisi

UPDATE (Wednesday, 7:00 PM ET) -- A New York grand jury has decided not to indict the police officer involved in the death of Eric Garner. Garner was suffocated to death while being subdued by police on a sidewalk in New York City. The graphic video of his death was captured on tape by a bystander at the scene and went viral shortly after its release. 

Is there a reason why these police officers are not being charged?

There are a few reasons.

For one, grand juries are made up of everyday people. The average person generally trusts the word of a police man as a pillar of authority in his or her community. That makes them more likely to believe a police officer than they will some other eyewitness. That's the initial hurdle.

It's also really hard to indict cops. Data shows that police officers are rarely indicted in these situations. Thus, both the Mike Brown and James Garner cases are actually the norm in that there are no criminal charges.

There's one other fundamental challenge. When a police officer is investigated for a killing, he is being investigated not only by a local district attorney who regularly works hand-in-hand with the police, but also by his fellow officers. The conflict of interest is clear.

Is there a solution?

There's one interesting solution being tried in Wisconsin. In that state, police-related killings must be investigated by an outside agency. This policy is the result of new legislation pushed by a Mike Bell, whose son was shot and killed by a police officer in 2004. The police officer was not charged. In response, Bell, a retired Air Force colonel, worked with various groups in Wisconsin to spend more than one million dollars educating the public about this issue.

According to Bell, the officer in his son's case told investigators that Bell's son, Michael, grabbed his gun. This led to an altercation where the officer shot Michael in the temple. Michael was handcuffed when the shooting occurred. The problem, according to Bell, is that this investigation seemed all too quick. Within 48 hours, Bell said, the police had found no wrongdoing on the part of the police officer. Bell responded by hiring a private detective, who dug up a different story that said the police officer's gun actually got stuck on the side window of the car. Feeling like the fix was in, Bell sought to reform Wisconsin law around police killings. The law he helped enact requires at least two investigators from an outside agency to review all police-related deaths. That officer, Albert Gonzales, is still on the force.

Why are people talking about police body cameras?

This decision comes right after a grand jury in Missouri decided not to involve the police officer responsible for the death of Michael Brown in Ferguson, Mo. In the wake of Brown's death, activists have called for police to wear body cameras in order to provide video evidence of police encounters with civilians. The president responded this week by asking Congress for $263 million in funding for police body cameras. The program would last for three years and would provide localities with half of the funds to purchase the equipment. This would equip America's police officers with 50,000 additional body cameras, nearly doubling the current number.

While body cameras would be a step in the right direction for those who are demanding more police accountability, the Garner case makes it clear they are not a cure-all. Garner's death was caught on tape and provoked national outrage, yet there will be no criminal charges

Why are some people disappointed with the president's recommendations about body cameras?

There are no proposed policies that would reduce police militarization. Many were hoping that the president would support reform of existing programs that transfer heavy military equipment, such as what we saw in Ferguson, from the federal government to local police. Specifically, critics of these programs were hoping for reform of the controversial 1033 program, which allows police departments to procure assault rifles and mine-resistant vehicles designed for war zones. The president's task force investigated these programs and did identify inconsistencies in their application, but that's about it. The president also said he will issue another executive order next year in light of these findings.

The taskforce also looked at civil asset forfeiture (explained here), but no reform was recommended. That allows law enforcement to seize property it believes was used in a crime. Critics say that it gives police carte blanche to take your stuff without convicting you of anything.

It will be difficult to reform the policies that encourage militarization.

Even if the president and his task force recommended specific police militarization reforms, it would be an uphill fight in Congress to pass them.

For one, both Democrats and Republicans support the programs that encourage militarization.

The Obama administration has mostly accelerated these programs. Take Byrne grants, which provide federal funding for state and local governments to create special anti-drug enforcement teams. These teams have been accused of violent, heavy-handed tactics that have resulted in the death of civilians as well as false charges. Yet, the Obama White House actually boosted Byrne grants after President Bush had begun to phase them out. In the stimulus bill of 2009, Democrats restored $2 billion in funding. COPS grants are a similar story. We've also covered the president's nominee for Attorney General, Loretta Lynch, and her affection for civil asset forfeiture.

On the other side of the aisle, older, "law and order" Republicans who generally support tough criminal laws outnumber the libertarian wing, led by Sen. Rand Paul. We've seen the conflict between these groups on issues such as sentencing reform and the drug war.

Finally, police unions really like when programs shift military equipment to their members. Thus, they've made every effort to kill reduce the transfers, succeeding this year in stopping a bill aimed at reforming the 1033 program discussed above. “We got a lot of pushback from law enforcement,” a Republican staffer told BuzzFeed. “Everybody kind of hit the pause button." The argument made by police unions is that "95%" of the equipment involved in these transfers is non-tactical. That is, it's not the tanks and assault rifles we saw in Ferguson. Instead, it is protective gear and building infrastructure upgrades.

What's the advantage to having police wear body cameras?

The idea is that investigators looking into civilian complaints about police conduct would have more evidence. This is good for both police and civilians -- police can respond to false accusations with the camera evidence whereas civilians will have more than eyewitness testimony to prove a charge. Think about the Michael Brown case. Many of the questions about Officer Darren Wilson's actions would be answered with video footage. The counter to this, of course, is the Garner case where there was no indictment even with video evidence.

There's also a preventative aspect to body cams. If police and civilians are aware that the interaction is on camera, they might be on their best behavior. After the Rialto, Calif.'s police department added body cameras in February 2012, complaints against police officers dropped by 88%, and police use of force decreased by 60%.

What do people not like about body cameras?

Privacy is one complaint. For instance, what about a police officer responding to a domestic violence call? Do we want that recording to be public record? Even if the victim is battered and bruised? Imagine another scenario where a celebrity who has an argument with her partner, and neighbors call police when they overhear the dispute. Are we comfortable with TMZ using a Freedom of Information Act request to obtain the body cam video of the police questioning at the scene? 

Of course, we could always exclude certain situations from public record. The problem that arises, though, is when police deny requests for legitimate investigatory material. In San Diego, officers who were wearing body cams were present at two shootings, yet the police department has refused to release the tapes. Activists in San Diego initially pushed for body cams to combat recent scandals over racial profiling and police misconduct. Yet, if the police can block release of the tapes, the cams are worthless to civilians and disproportionately empower the police by providing them a tool that's not accessible to everyone else.