By Margo Kirchner
Criminal law rarely provides justice in cases of police brutality and violence because convictions are so difficult to obtain even with video evidence, according to a Villanova University law school associate dean.
“It’s hard to win cases against police officers, and because plaintiffs usually lose, police are not deterred from their bad behavior,” said Teressa Ravenell, who also is a professor at Villanova’s Charles Widger School of Law.
Ravenell made her comments during the American Constitution Society’s recent briefing call on police violence and systematic racism in the U.S. legal system. ACS held the call in response to the killing of George Floyd and waves of protest across the country.
Ravenell said that federal law allows individuals to sue when their civil rights are violated by government actors, but that law has not prevented police violence either.
The law, Section 1983, has become “another example of systematic failure,” she remarked. The statute is “not inherently flawed,” but the U.S. Supreme Court’s interpretation of the statute has caused it to fail, she said. Problematic interpretation of Section 1983 includes the judge-made doctrine of qualified immunity, Ravenell said.
The qualified immunity doctrine protects public officials from civil liability unless their conduct violates a clearly established constitutional right about which a reasonable person would have known. The Supreme Court has written that the doctrine protects "all but the plainly incompetent or those who knowingly violate the law” and balances the need to hold public officials accountable when they act irresponsibly with the need to shield them from harassment, distraction, and liability when they perform their duties reasonably.
In a 2018 dissent, however, Justice Sonia Sotomayor wrote that the doctrine “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
The doctrine has recently shielded officers from liability for stealing $225,000 while executing a search warrant, shooting a 10-year-old boy in his backyard while pursuing a suspect, and slamming to the ground a woman who turned to walk away from an officer toward her daughter, rendering the woman unconscious.
Ravenell set forth five large hurdles plaintiffs face under current law, which in her view result in continued racist law enforcement.
First, the Supreme Court’s Fourth Amendment cases give police officers too much power to stop, investigate, and arrest Black people. Police may legally stop someone if an officer has reasonable suspicion to think that criminal activity is afoot, and that standard can be met when a person acts evasively in a high-crime area. Ravenell called “high-crime area” a “fancy way” of saying poor, Black neighborhoods. As a result, Blacks are more likely to be stopped by police. Further, Blacks are pulled over for traffic violations more than any other group, she said.
Second, the Court’s Fourth Amendment cases give police officers too much license to use force. The court has allowed officers to use deadly force when they reasonably believe a person poses an immediate threat of harm to the officer or others, and too often officers view unarmed Black men as threats, Ravenell said. Ravenell proposed that the qualified immunity standard should at the least be transformed from considering what a reasonable or average officer would do to what a well-trained officer would do in the situation.
Third, Ravenell said, under current law plaintiffs face too many causation problems because they must establish which specific officers harmed them. For instance, a protester shot by a rubber bullet must show which officer fired the shot. But that is impossible if officers will not testify against each other, she remarked.
Fourth, the qualified immunity defense protects officers in too many situations when the law was not clearly established at the time the officers acted. “Many people are writing about this right now,” she said, adding that “we need to eliminate the qualified immunity defense.”
Fifth, even when plaintiffs succeed, verdicts against officers fail to alter conduct because officers do not pay the verdicts against them; taxpayers do.
Ravenell closed by noting that the failure to fire violent officers also played a role in creating the current crisis. The officer who killed George Floyd had 18 prior complaints against him, she noted. Ravenell compared the vastly greater money spent on monitoring parolees with that spent on monitoring police.
“We need to ensure that police departments have the incentive and the means to terminate the recidivist officers,” plus a database to track them so they are not hired by other communities, she said.
Another call participant, Taja-Nia Henderson, a professor at Rutgers Law School and dean of the Rutgers Graduate School, discussed the historical predicates for police abuses today.
Henderson described how policing in the United States has always been linked to property interests and the control of black and brown bodies.
sBy Gretchen Schuldt
The Milwaukee Police Department's use-of-force policy does not prohibit the chokeholds or the kind of restraint that Minneapolis police used when they killed George Floyd, records show.
Milwaukee has adopted just three of eight restriction on use of force recommended by Campaign Zero, an effort to reduce killings by police, according to the campaign.
Fire and Police Commission Executive Director Griselda Aldrete, responding to recent protests in Milwaukee, told the Common Council's Public Safety and Health Committee last week that the commission will review the policy.
Milwaukee's use-of-force policy also keeps secret the some of the weapons that the Police Department can use against protesters and others. The policy does not disclose why the public should not know what can of weapons can be turned against it.
The policy says the secret weapons are not lethal, but that cannot be verified without knowing what they are. Tear gas and rubber bullets also have been described as nonlethal, but they can kill or maim.
Campaign Zero has identified eight restrictions associated with fewer killings by police. Of those, eight, Milwaukee has adopted three – establishing a continuum of force, requiring a warning before shooting, and imposing on officers a duty to intervene if they see an excessive use of force by a colleague.
The campaign also says the city does not require that all other alternatives be exhausted before officers are authorized to shoot, but the Fire and Police Commission last year approved language that says that use of force that may result in serious injury or death "may only be used as a last resort."
The other recommended restrictions the city has not adopted, according to the campaign, include:
While the city's policy does require reporting of many types of uses of force, it does not require reporting when an officer points a gun at someone without firing, according to the campaign.
The campaign reported in 2016 that each of the eight recommended killings were associated with fewer police-involved killings.
The policies linked to the largest drops in police-involved deaths were required comprehensive reporting (25% reduction), the requirment that officers to exhaust all other reasonable means before shooting (25% reduction), and that ban on chokeholds and strangleholds (22% reduction).
"While each individual policy predicted lower rates of police-involved killings, the fewest killings per population were observed among police departments that had several of these policies in place," the study said. "For example, departments with four or more of restrictive use of force policies in place had 37% fewer police-involved killings per population than those that had 0 or 1 of these policies in place."
By Gretchen Schuldt
Milwaukee police officials during budget hearings attributed the decline in city traffic citations this year to the city's settlement in the ACLU's stop-and-frisk lawsuit.
Dangerous driving has become a major issue in Milwaukee, outraging many residents.
While attributing the decline in citations to the ACLU, however, police failed to note that the number of tickets issued in the city has been declining for years except for significant jumps in 2017 and 2018 – the year the ACLU's lawsuit was filed and the year it was settled.
"It's part of the ACLU lawsuit," Police Chief Alfonso Morales told the Common Council's Finance and Personnel Committee, referring to the decline in speeding tickets.
"We’re not doing the flooded over-policing area where we’re measured on our activity on traffic and subject stops that resulted in citations," he said.
The ACLU of Wisconsin, along with the American Civil Liberties Union and the Covington & Burling law firm, brought a class action lawsuit on behalf of African-American and Latinx residents who challenged the constitutionality of MPD's traffic and pedestrian stops and alleged they were racially biased. The city denied wrongdoing, but agreed to several reforms to settle the suit.
Morales, at the committee meeting, acknowledged that police previously stopped and cited people for reasons other than the violations they committed.
Police now are "actually pulling the person over that actually is speeding or doing something reckless.... So those are the people that are getting the tickets – We’re not just – again, that whole Center Street corridor, where we’re stopping a minivan because, a Dodge Carava(n) – a mini-van because it’s high steal, and we’re stopping every Dodge Caravan and giving them a ticket....Those are all things that came across in the agreement with the ACLU lawsuit."
Molly Collins, advocacy director of the ACLU of Wisconsin, said Wednesday that "there's nothing in the settlement that stops police from enforcing the law."
The lawsuit, she said, was "not about them enforcing the law, but about them breaking the law."
Annual number of traffic cases filed in Municipal Court
The Sterling Brown case: There may have been dead people in that Walgreens, cop says a year-plus later
By Gretchen Schuldt
Parts of depositions of police officers involved in the detention, takedown, tasing, and arrest of Milwaukee Buck s player Sterling Brown in January 2018 have been filed in Federal Court.
Brown was confronted by several officers after he parked illegally in a handicapped parking space at a Walgreens parking lot about 2 a.m. Jan. 26.
Brown has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, filed several deposition excerpts.
The City of Milwaukee and other defendants have denied violating Brown's rights.
WJI is publishing portions of the depositions. This first selection is from the deposition of Officer Joseph J. Grams, who first stopped Brown as Brown returned to his car from the store. Brown's date was in the car at the time.
Grams, in his May 2019 deposition, said his contact with Brown was effective because Brown did not get past him.
Grams: That was the intent; not to get -- not to let him get past me because he could have been a fleeing felon.
Thomsen: What do you mean he could have been "a fleeing felon"?
Thomsen: Tell me.
Grams: Well, my thought was that when he was coming out, was that, hey, we have a situation; could be an armed robbery. The car is, as we described before, positioned for a quick exit. It's the only car in the whole lot; positioned for a quick exit out of the parking lot; so a perfect armed robbery car. The car was running. There was a lookout in the car, and it's positioned to flee directly out the parking lot. So at that time until we investigated further, I couldn't let him pass into his car because there could have been dead people in the Walgreens until we verified that; so it worked. Stalled him until other squads could get there.
Context: Gram's lawsuit alleges that "Approximately ten seconds after first approaching Mr. Brown, and before Mr. Brown had any reasonable opportunity to respond to Defendant Grams’ demands, Defendant Grams unlawfully shoved Mr. Brown" and "less than thirty seconds after Defendant Grams first approached Mr. Brown, Defendant Grams phoned dispatch and requested backup. While Defendant Grams called in his request for backup, Mr. Brown waited quietly. After contacting dispatch, Defendant Grams returned to Mr. Brown again, telling him to 'back up!' in a loud voice. Mr. Brown asked Defendant Grams, 'for what?' Defendant Grams deceptively accused Mr. Brown of obstructing, and then told Mr. Brown 'I’ll do what I want, alright? I own this right here.' Mr. Brown replied, 'You don’t own me, though.' "
Later, while Brown was on the ground, "Grams used his right foot to stomp on Mr. Brown’s leg. Then after the Taser was shot into Mr. Brown’s back, Defendant Grams proceeded to stomp on Mr. Brown’s leg with both feet."
After Brown was tackled, tased, and cuffed, the complaint says, "Grams commented to Defendant Krueger, '[i]f the guy hadn’t been such a dick it would have been ‘hey, have a nice day!’ you know? But then I thought, okay he’s being an ass, he’s trying to hide something.'”
Thomsen: When did you first tell any human being that you said it could have been dead people in the Walgreens?
Grams: What's that?
Thomsen: When is the first time you told anybody that there could have been dead people in the Walgreens?
Grams: I think just now.· I don't remember – at the scene, you mean?· I don't think there was anybody I told that to.· I don't recall that anyway.
(After the incident, officers involved in it were directed to take remedial training, where they reviewed body camera footage and discussed flaws in the way they handled the situation.)
Thomsen: Let's be very clear.· At the remedial training, what did they tell you about your pushing Mr. Brown? ...
Grams: Okay. Yeah, it should have been more forceful because in that training – I mean, I tried to keep it from escalating; so I just pushed him with my fingers. That training shows that you strike the person straight up in the chest very forcefully to actually move them back. I didn't do that. I wanted to do try and keep it as low-key as possible; so that's what I should have done, and I didn't do it. I didn't strike him like that, which I should have by the book.
Thomsen: Who told you that at the remedial training, that you should have shoved him?
Grams: Well, I don't know if anybody -- I don't know if anybody told me that, but that's what the DAT book says.
Thomsen: My question, sir, was, what did they tell you at the remedial training about your contact with Mr. Brown?
Grams: I'm not sure if they addressed that or how they addressed it.
Thomsen: Lieutenant Stein writes, in quotes, Police Officer Grams displayed resistive and dismissive behavior throughout the remedial regarding the ProComm concepts Police Officer Anderson laid out. What were you dismissing about what Officer Anderson pointed out?
Grams: I don't think I was dismissive about it. I just didn't agree with him.
Thomsen: What didn't you agree with?
Grams: That – he was saying I should have stepped back and let him get in the car, and I didn't agree with that; so that's his opinion.
By Gretchen Schuldt
While Milwaukee city politicians last week asked Gov. Evers for help in addressing reckless driving, the city's own Police Department is writing far fewer traffic tickets than it did last year, Municipal Court figures indicate.
The number of traffic cases filed in the court fell by 46%, or 26,462 cases, this year through September, a reflection of decreased enforcement.
While not every traffic ticket becomes a Municipal Court case – some may be dismissed before they get to court, for example – court filings are a good proxy for police activity.
There were 30,940 traffic cases during the first nine months of the year compared to 57,402 through September of last year, according to Municipal Court statistics. This year’s numbers also trail the 31,515 filed total through September 2017.
Ticket-writing jumped in 2018 amid public outrage about reckless driving. The anger has not abated, but the ticket writing has.
The Milwaukee Fire and Police Commission will not investigate the Wisconsin Justice Initiative's complaint about derogatory comments a police officer made because the complaint came from a third party and not someone directly affected.
The officer's comments, made during a Federal Court deposition, targeted North Side and central city drivers. A transcript of the officer's deposition is on file in Federal Court and is a public record.
The commission's decision "is ridiculous and surprising," WJI Executive Director Gretchen Schuldt said.
WJI filed the complaint in August, after reading the transcript of a deposition of Milwaukee Police Officer – now Detective – Froilan Santiago. The transcript is part of the public Federal Court record.
Santiago testified he would invite traffic stop subjects into his squad car if the stop was in a Downtown police district, but not if it was in a central city or North Side district.
"District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5," he said.
The populations of Police Districts 5 and 7 include the largest percentages of African Americans among all the districts in the city, according to a U.S. Justice Department draft report on the Police Department.
In District 1 Downtown, "it's more of people as far as the -- more able to communicate and more different lifestyle," he said.
He added: "District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time."
Fire and Police Commission guidelines generally require a complainant to have a "reasonably direct relationship" to an incident for a complaint to be considered.
"Complainants are considered to have a direct relationship if they were directly affected by the alleged misconduct, witnessed the alleged misconduct, or have special, professional, or organizational knowledge about the alleged misconduct, e.g., a lawyer, a judge, or an FPC employee," according to the guidelines.
The guidelines also state that "The purpose for requiring a reasonably direct relationship is to help the FPC respond effectively to complaints from persons who have the greatest interest in the outcome and who have the most reliable information about an incident. It is not intended to screen out otherwise reliable complaints that deserve investigation."
A commission employee informed WJI last week that its complaint did not meet the guidelines' criteria.
"This gives a huge get-out-of-jail-free card for officer misconduct," Schuldt said. "It kills the idea of the third-party whistleblower complaints when it comes to the Milwaukee Fire and Police Commission. It's a bad day for Milwaukee."
By Gretchen Schuldt
A Milwaukee police officer testified he would invite traffic stop subjects into his squad car if the stop was in the Downtown police district, but not if it was in a central city or North Side district.
Officer Froilan Santiago made the statements during a 2017 deposition taken during a Federal Court lawsuit alleging that Santiago used excessive force during a traffic stop. The suit is pending.
"So then getting back to my question," attorney Nathaniel Cade, Jr. asked Santiago, "how many times since 2006 have you initiated a stop of someone and suggested that they get out of the vehicle and get into the front seat and look at the computer?"
"Now, like I said, District 7, I wouldn't do," Santiago said. District 7 headquarters is at 3626 W. Fond du Lac Ave. on the city's North Side.
"Depends on the situation and environment," he continued. "District 1 is a different type of environment where it's more of people as far as the -- more able to communicate and more different lifestyle of the individual based on our training in District 1 -- or based on what -- my experience at District 1, it's a lot more common than if I was at District 7. "
District 1, Downtown, is headquartered at 749 W. State St.
He continued: "District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5."
District 5 is based at 2920 Vel R. Phillips Ave.
"District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time. I don't know," Santiago said. "Like I said, it's just discretion of the individual of what's going on."
"So you're profiling the driver of the vehicle based on the district that you're in because it's more likely that if they're in a poor neighborhood, that it's drugs and guns?" Cade asked.
"You asked me how I'm going to perform my traffic stop," Santiago responded.
The plaintiff in the lawsuit, Jimmy Harris, alleges that Santiago in November 2010 stopped the car Harris was driving and asked him to get out of the vehicle. Santiago said he stopped the car because it was black and the color listed on DMV records as gray. It was about 4:45 p.m. and dark at the time of the stop.
The same mistake about the car's color had been made previously, according to the suit, and Harris offered to show Santiago on the squad computer how the error was made. Santiago accepted, but then "suddenly grabbed Mr. Harris' left arm that had recently been operated on and used it to maneuver Mr. Harris..."
This 29-minute video shows parts of Harris' encounter with police.
By Gretchen Schuldt
The City of Milwaukee, just five months into the year, already is in borrowing mode to pay off court settlements related to police conduct, a financing strategy that increases costs for taxpayers and leaves them with nothing to show for their money.
The city will borrow $2 million to pay the family of a man who died in the back of a squad car, and will borrow another $2.3 million to pay the family of a man who died in jail of an epileptic seizure about 18 hours after telling police he did not have his regular dose of anti-seizure medicine, according to city documents and Budget and Management Director Dennis Yaccarino.
Interest alone could add a million dollars or more to the total price tag over the life of the bonds, depending on their longevity and interest rates.
Ideally, state and local governments use bonds to pay for large capital projects that are expected to last a long time, like roads, bridges, and schools. Borrowing for these types of projects allows governments to spread the costs over decades to ensure that future beneficiaries of the projects share in the costs.
Borrowing for police-related settlements, however, is on the increase not only in Milwaukee, but across the country.
Here, Yaccarino said, "It is a challenge to continue to budget core city services with no growth in revenues and have no ability to set up a funding mechanism for court settlements that eliminates borrowing without impacting those core services."
The city traditionally has relied on a $5 million contingent fund to pay settlements that exceeded the amount budgeted for them, he said.
This year, though, Yaccarino said, snow and ice removal costs are running $4.3 million over budget, melting away much of the contingent fund.
The city's uncomfortable position is not unique to 2019. Budget figures show it is now common for the city to pay out more in damages and claims than the total $5 million budgeted in the contingent fund.
Last year, the city borrowed $6.2 million to cover damages and claims like the police-related lawsuits it needs to borrow for now, according to city bonding documents.
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