Are we experiencing a watershed moment in policing—a time when the police are holding their peers accountable?
If so, why? Will it last? Will police unions attempt to thwart it?
The “blue wall of silence” is a well-known phrase among those of us who study policing. Traditionally, it has meant that one police officer will not speak out against another even when she knows her colleague has done something illegal.
For the past several days, I have watched sworn police personnel of varying ranks make statements in social media posts that condemn the police behavior that led to the death of George Floyd in Minneapolis. Not only do the statements say the officers in Minneapolis were wrong; many conclude that the officers should be criminally charged. In some locations, police have even marched or knelt beside protesters.
I am heartened by this new development. But I also find myself asking: why now?
Nearly six years ago, Eric Garner said, “I can’t breathe,” while being held in a chokehold by New York Police Department officer Daniel Pantaleo. Rather than condemn the behavior, which violated the guidelines of his own department, many of his colleagues and their supporters offered explanations or excuses for why the officer behaved the way he did, and why his behavior was not criminal.
A Staten Island grand jury declined to indict Pantaleo, and just last year, Attorney General William Barr ordered the federal civil rights case against him dropped. [Pantaleo was fired in August, 2019.]
Four months after Garner’s death, 12-year-old Tamir Rice was shot and killed by a Cleveland police officer who had been deemed “unsuitable” for police service by another department.
Some active and former members of police departments later confidentially admitted to me that Timothy Loehman and his partner, Frank Garmback used “bad tactics” by pulling right up to Tamir, who was holding a toy gun, and shooting him within seconds of their arrival. But again, neither Loehman nor Garmback were indicted.
Between the deaths of Eric Garner and Tamir Rice was the shooting of 18-year-old Michael Brown by Ferguson, Mo., police officer Darren Wilson, under circumstances that remain contested. The officer, who had been let go from two previous police departments, claimed that Michael Brown inexplicably attacked him, so he shot in self-defense.
Wilson was not indicted.
This series of killings and others led to national protests both peaceful and violent, to condemnation of the grand jury system, and to calls for special prosecutors in such cases to avoid the obvious favorable bias that local prosecutors may have toward defendant officers. A NFL player, Colin Kaepernick, sacrificed his football career by kneeling during the national anthem to contest these failures of justice, setting off a maelstrom of controversy that extended all the way to the White House.
In the meantime, the death toll continued, with some incidents caught on tape while others were not.
Following a special investigation, The Washington Post estimated that 296 unarmed civilians were killed by police between January 2, 2015 and November 25, 2019. The investigation, which went well beyond the official statistics published by the Federal Bureau of Investigation, caused an outcry.
But for the most part, the policing community remained silent.
And then the convictions began. In a series of sequential publicized cases, trial juries began to do the unthinkable: They began to convict sworn[i] officers of criminal homicide for killing civilians while on duty.
Traditionally such cases were tried to a single judge who, more often than not, acquitted the officer or officers (see for example the 2008 outcome in the death of Sean Bell, the 1996 outcome in the death of Anthony Baez; or the 1987 outcome in the death of Eleanor Bumpers).
When cases were tried to a jury, officers were also acquitted (see for example the outcome in 2000 for the death of Amadou Diallo). But, with the February 2016 conviction of NYPD officer Peter Liang, things began to change.[ii] Liang was convicted of manslaughter for causing the death of Akai Gurley in the stairwell of a New York City housing authority building. The conviction was controversial because the shooting was allegedly accidental and the officer involved, like the victim, was a person of color.[iii]
However, in each of the remaining cases that resulted in convictions, the officers were all white, and the victims were all black, like Akai Gurley. In those cases, the convicted officers received prison sentences ranging from 81 months to 15 years.
The convictions took place over the course of a little more than two years.
See TABLE below:
Unlike the holdout juror in the 2016 Charleston, S.C., mistrial against Michael Slager, for the murder of Walter Scott,[iv] the jurors in these cases unanimously concluded that the police officers acted in a way that warranted criminal punishment.
Did these jury decisions make it more comfortable for sworn law enforcement personnel to criticize their colleagues? Did they make it more comfortable for them to express their lack of confidence in a prosecutorial process that had been unable or unwilling to ensure that such incidents could move beyond the grand jury?
Did these trial jury decisions signal to the ethical members of the policing profession that juror pools now include people who are not blindly loyal to law enforcement agencies regardless of how their members behave?
For police leaders, were these social media posts political decisions designed to reduce the likelihood that violent protests would break out within their own cities under their “watch”?
Some have criticized these recent law enforcement posts condemning the death of George Floyd as “too little, too late.”
However, I am hopeful that what we all see on the video footage of George Floyd’s death is so egregious that even the most staunch police supporters can see it for what it is—a crime against humanity.
Delores Jones-Brown is retired from the Department of Law, Police Science and Criminal Justice Administration at John Jay College. A former assistant prosecutor in Monmouth County, N.J., she is currently a Practitioner in Residence at the University of New Haven (UNH) in the Department of Criminal Justice where she is also affiliated with the UNH Center for Advanced Policing. She recently co-authored, “Convicted: Do Recent Cases Represent a Shift in Police Accountability?” published in the Criminal Law Bulletin, Vol. 56, No.2, 2020:270-301.
[i] In April 2015, Robert Bates, a volunteer sheriff’s deputy in Tulsa County, Oklahoma was convicted for killing Eric Harris and sentenced to four years in prison but was released after serving one and a half.
[ii] Note is taken of the 2005 bench trial conviction on NYPD Officer Bryan Conroy for killing Osmane Zongo in 2003.
[iii] Note is taken of the fact that the Brooklyn District Attorney at the time, Ken Thompson, was also a person of color.
[iv] In the state trial against Slager, in a letter to the court, the juror wrote, “I cannot in good conscience consider a guilty verdict. . . I cannot and will not change my mind.” Slager subsequently pleaded guilty to violating Walter Scott’s civil rights in federal court and was sentenced to 20 years in prison.