Comments

• December 4 2014 at 3:28 pm
  Josh Carroll '98
  I guess a good place to begin is to look at some of the basic guidelines for the use of excessive force. This was circulated around by some of the folks that I know that work both in district attorney offices and law enforcement: http://www.policeone.com/use-of-force/articles/7526699-How-cops-can-help-citizens-better-understand-police-use-of-force/
• December 4 2014 at 7:51 pm
  Guy Nave

  Thanks, Josh, for the resource link. I must admit, after the grand jury decision not to indict Darren Wilson or the officers responsible for killing Eric Garner and after the DOJ study revealing that 84% of police officers report that they've seen colleagues use "excessive force" on civilians, I'm concerned about our willingness as a nation to accept so-called "justifiable homicides."

• December 10 2014 at 8:02 pm
  Brian, Luther Parent
  In order to further this particular dialogue I suggest that perhaps it would be prudent to examine the term "excessive force" from a legal perspective instead of relying upon an ABC News article for an understanding of the phrase. Fourth Amendment standards on excessive force are fact specific: the excessive force standard for police officers making an arrest is one of objective reasonableness that must take into account the amount of force used and its apparent necessity from the perspective of a reasonable police officer at the scene. Hindsight should not be used; similarly the defendant’s motive or intent is legally irrelevant. See, Garner v. Tennesee, 475 U.S. 1, (1985) and Sheldon Nahmod, Distinguished Professor of Law, Chicago-Kent College of Law presentation entitled: Recent Supreme Court Developments In Equal Protection/Affirmative Action, Substantive Due Process/Privacy and the First Amendment. The legal definition is quite different from the ABC News article's stated proposition that "officers should only use the level of force that's being used (or threatened) by suspects against the officers." How one may conclude that, "The Darren Wilson situation is an example of a 'post-chase adrenaline' situation based upon the stated information provided in the ABC News article is curious to me. Based upon the evidence presented to the grand jury it appears that there was a scuffle between Wilson and Brown, Brown disengaged and ran away and Officer Wilson gave chase while firing his weapon, after somewhere between 30-50 yards of running/chasing Brown turned and began running toward Officer Wilson approaching within somewhere between 10 to 30 feet of the police officer. If Officer Wilson believed Brown constituted a threat to himself or others it was probably not a post-chase adrenaline situation. Post-chase adrenaline situations generally involve situations when the officer has gotten things under control but cannot or does not cease his/her aggressive conduct because they are so amped up on adrenaline. If Brown turned and was charging at Wilson as several witnesses have indicated (Brown knowing that Wilson had a gun and was willing to use it) Wilson did not have control of the situation. It is more likely, in my opinion, that Brown was the one acting on adrenaline -- according the credible evidence, he engaged in a scuffle with a police officer, disengaged after the first shot fired in the SUV, reengaged until the second shot and then turned and ran away only to later turn and charge at the officer (as some have described like a football player making a tackle) all the time knowing that the officer had a weapon and was willing to fire it. More often than not people do not act in that manner. Most unarmed people when being fired upon with a gun continue to run away or become immediately compliant with the officer's commands. That said, people can do some crazy, amazing, unbelievable things in the face of personal danger to themselves. Additionally, some of the commentary in the blog is misleading at the very least. The blog states: "Supreme Court Justice Antonin Scalia, . . .points to several problems with the Ferguson grand jury situation. As Scalia points out, the decision not to indict Officer Wilson was 'the result of a process that turned the purpose of the grand jury on its head.' As Scalia goes on to say, 'neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.' As Judge Scalia points out, the choices Attorney McCulloch made with regard to his handling of the grand jury were made to reduce the chances that the grand jury would indict Darren Wilson." That commentary, as written, gives the false impression that Justice Scalia actually offered an opinion on the Ferguson Grand Jury process. It does this by, in part, utilizing active verbs in telling that he 'pointed' to several problems with the Ferguson grand jury situation and 'went on to say', etc. The truth is Justice Scalia has not made any direct comments about the situation in Ferguson. As a sitting justice it would be very unlikely for him (or any other justice) to offer an opinion. Instead, what is happening is others (a lot of others) are citing his written opinion from a case decided back in 1992. In the blog he's apparently offered the opinion to the world that McCulloch's handling of the grand jury was deliberately done to reduce the chance of an indictment when, in fact, he's done no such thing. There are two common methods of bringing one before the court on a criminal allegation -- The most common method is called a preliminary hearing. A prosecutor files a trial information and the accused has a right to have a preliminary hearing (a mini-trial in which testimony is taken under oath). Most defendants waive their right to a preliminary hearing. If a preliminary hearing is held, the defendant has the right to cross-examine the state's witnesses and to produce evidence. The purpose of the hearing is to determine if there is probable cause to believe a crime has been committed and the defendant is the one who committed it. The other method -- employed on a much less frequent basis -- is the grand jury. A grand jury is a panel of private citizens impaneled by a judge whose task it is to look into allegations of criminal activity. The prosecutor presents evidence to the grand jury for its deliberation as to whether there is probable cause a crime was committed and the defendant is the one who committed it. Unlike a preliminary hearing, a defendant does not appear at a grand jury proceeding unless they are called upon to testify as a witness. Again, the defendant does not appear at a grand jury unless they are called upon to testify as a witness. I've made reference to a lot of rights that defendant's have; what Justice Scalia said is a defendant does not have a right to testify at a grand jury proceeding (a right a defendant does have in a preliminary hearing); a defendant cannot demand to be heard by the grand jury. That in no way means the defendant or accused cannot be called upon to testify by the grand jury. There is no judge in the room during a grand hearing proceeding and the rules of procedure generally do not apply other than those applicable to the entry of exhibits into the record. The prosecutor's role is explain the law and work with the grand jurors in gathering the evidence and hearing the testimony. Grand jury proceedings are closed to the public and generally kept in strict confidence in order to encourage witnesses to speak freely and without fear of retaliation and if the jury does not indict the defendant's reputation is not harmed by the process. Missouri Supreme Court opinions tell us that grand juries: may inquire into all possible violations of the law, have wide latitude in their inquiries, may issue subpoenas. A grand jury has the power to hear almost anything they would like to hear for evidence (except constitutionally protected or privileged information such as attorney-client or doctor-patient). Prosecutors have the responsibility of a minister of justice, not simply an advocate. The prosecutor's responsibility carries with it the specific obligation to see that a defendant/accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Which brings me to my final comment. . . It strikes me as ironic that many are leveling criticism at Attorney McCulloch because he offered the grand jury Wilson's testimony (Note: I am aware that he did not directly participate in the presentation of evidence to the grand jury). In the initial blog post -- "Ferguson: A question of excessive force" the following was stated: "I agree with attorney McCulloch regarding the importance of 'critical examination.' I, however, would assert that decisions on matters as serious as shooting an unarmed teenager six times, including twice in the head, cannot be decided on anything less than complete critical examination and reflection of ALL available evidence. "Anything less is not justice." (emphasis in original) Are we to understand from that statement that Officer Wilson's testimony does not constitute any part of "ALL available evidence" that is to be completely and critically examined?
• December 12 2014 at 9:49 am
  Tim, Luther Alum

  Thank you Professor Nave and everyone contributing to this civil conversation; a kind of respectful dialogue I first came to treasure in Paideia and then in Prof. Grindal's Rhetoric class and others at Luther decades ago. 

  Here's what grieves me the most.  Here in 'liberal' Madison, WI we are the worst.  Yes among the very worst in the USA when it comes to socioeconomic, racial and policing disparities [Wisconsin Council on Children and Families' “Race to Equity” report].  And yes I am also grateful for the times that I have been able to work with, and benefit from, the work of our many admirably moral and professional police; city, university, county and state.  We can do better.  The following essay may support improvements and add to this conversation.  It begins by addressing a culture of domination;

  "What’s happened in Ferguson is not about Darren Wilson or Michael Brown, or even about the city and its police department. Instead, it’s about a practice of policing that dominates rather than serves. For me, the best description of this style is domination policing. It is a method and practice designed to hold-down, control, and intimidate one group of people for the benefit of another. Policing by domination violates our nation’s principles, enduring values and Constitution. Unfortunately, it is alive and well today in America.

  Today’s domination system isn’t too far away from the days of Jim Crow, which was also a domination system. It is not unlike how newly arrived immigrants were and are treated. Internationally, we see domination policing practiced by every one of the world’s totalitarian political systems without exception. Too frequently, it is practiced in many cities in America. Domination Policing has no place in our system of government. It is wrong and must be dismantled.

  Across our nation, hundreds, perhaps thousands, of Fergusons exist. They are cities and towns that once existed in a monoculture world and now are experiencing major demographic and economic shifts. Their response to these trends has often been to control and dominate certain parts of their city. These diversifying trends, however, will not stop as America continues to grow and emerge as a true multicultural nation."

  ..and continues here; http://improvingpolice.wordpress.com/2014/12/01/a-lesson-from-ferguson-its-time-to-end-domination-policing/

   

• December 12 2014 at 10:58 am
  Rev. David C. Couper

  As a fellow Christian and Anglican priest (and former chief of police) I would like to invite you and your readers to follow my blog at http://improvingpolice.wordpress.com and especially my call for a national apology from our nation's police... it's a hot topic but I am trying to lead the way...

• December 12 2014 at 1:30 pm
  gaye
  here in lies the rub.. we live in a police state. a country where police exist to protect the rights of the wealthy and those with private property, and are given license to use force in protection of these 'rights" But where did the white's get their property and their wealth? they stole it. the land from the Indians, the wealth/labour from Africans. Until this country commits to a process of truth, there will be no reconciliation. no peace. this is a long overdue conversation.