A MATTER OF DUE REGARD: POLICE MISCONDUCT, THE NEW YORK STATE COURTS, AND THE EMPTINESS OF THEORETICAL JUSTICE.

• Author: Reid, Felicia A.

1. INTRODUCTION

   Whether across front pages and television screens, or in conversations and confrontations, concerns about law enforcement's use of force are at the forefront of national consciousness. Anxieties about police authority and abuse are neither novel nor new. They trace to the Framers' unease toward standing armies in peacetime; (1) the context giving rise to the Wickersham Commission, created to address Prohibition-era concerns about corrupt police practices; (2) and the violence that engulfed Los Angeles after the 1991 beating of Rodney King at the hands of police. (3) These concerns, however, stand in sharp relief against police opinions. (4) A Police Foundation and U.S. Department of Justice ("DOJ") survey of law enforcement officers indicated that, while officers, in general, did not approve of excessive force, they believed that the public was "too concerned" with police brutality. (5)

   This sentiment may reflect the fact that the majority of individuals killed by police are armed with objectively deadly weapons, (6) and that the use of force by law enforcement, threatened or experienced, is a rare occurrence. (7) Yet, this evidence is little assurance on the occasions when, in employing force, officers can quickly find themselves crossing the line between what is reasonable and what is excessive. (8) It is even less comforting to individuals, families, and communities left reeling in the wake of incidents that raise more questions--and outrage--than answers. (9) This outrage is particularly acute among those who confront the use of police force more frequently than others--youth, men, and persons of color. (10) Incidents of police force also occur more frequently in low-income communities of color, (11) in areas where police presence is more routine than exceptional, (12) and in neighborhoods where the over-policing of minor crimes has a counterintuitive relationship to the under-policing of major crimes. (13)

   When discussing police misconduct, it is critical to acknowledge that what constitutes misconduct as a matter of force resists easy interpretation--especially before the law. The same actions that give rise to community mistrust and anger may concurrently result in civil liability, but not criminal culpability. (14) Further, depending on the circumstances of a case, police departments and unions may take conflicting positions on the correctness of an officer's conduct. (15)

   Communities touched by instances of police violence require meaningful address by and engagement with police. These communities must also commit to renegotiating trust and respect with law enforcement. (16) However, in an environment where police misconduct's "bad apple" theory (17) is ever-undermined by a steady stream of bystander footage, community wounds, already open, deepen and fester. (18) Victims of police violence suffer both the physical and mental trauma born from the violation of a certain social trust. (19) They also suffer in more quantitative terms, in the form of medical expenses, lost income, and legal fees--all of which take time to pursue, navigate, and resolve. (20) Indisputably, those who have been subject to maltreatment at the hands of police deserve acknowledgement and justice, and their aggressors should personally account. (21) Yet, as recent criminal and civil proceedings have demonstrated, justice and accountability are theoretical, if not entirely empty, gestures. This article takes a look at these proceedings in a New York State framework, and endeavors to understand the courts' limitations on meting out meaningful justice.

2. POLICING IN THE FRAME OF INSTITUTIONAL LEGITIMACY AND PROCEDURAL JUSTICE

   The difference in perceptions of policing marks the contrast between worlds, differing often not only in racial composition, but in matters of economics, political engagement, and the ease of access to social and legal institutions. (22) As a result, by virtue of experience and exposure, people of color (23) frequently view law enforcement as untrustworthy and less legitimate. (24) Institutional legitimacy is critical to the concept of justice, and, as to law enforcement and the criminal justice system, that legitimacy arises not from fear, but from a community that experiences equity and fairness before the law. (25) Legitimacy further hinges upon procedural justice--that is, the subjective and objective notion that those caught up in the legal system are treated equally and without caveat or qualification. (26) As it stands today, the institutional biases in favor of law enforcement in the criminal context, as well as the functional limitations of civil redress, keep a sense of justice in response to police misconduct evanescent. (27)

3. SEARCHING FOR JUSTICE AMONG THE NAMES OF THE DEAD

   1. Delrawn Small, (28) Edson Thevenin, (29) Richard Gonzalez, (30) Miguel Espinal, (31) Richard Davis, (32) Denis Reyes, (33) David Felix, (34) Samuel Harrell, (35) Donald Ivy, (36) Denzel Brown, (37) Akai Gurley, (38) Daniel Satre, (39) Eric Garner, (40) Ronald Singleton, (41) Travis Tellone, (42) Steven J. Bell, (43) and Lawrence Ports (44)

   This article focuses on law enforcement's use of excessive force and deadly force in New York State since 2013. The year marks the crystallization of the then-nascent Black Lives Matter movement, as well as the explosion in media coverage of police shootings. (45) This article arose out of curiosity about the obscure: how did New York State's criminal and civil courts grapple with the unarmed, deadly force's most objectively innocent victims?

   Between 2013 and the summer of 2016, the seventeen individuals named above met their deaths due directly to the use of deadly force by New York law enforcement--otherwise known as "deaths by legal intervention." (46) These seventeen victims share several characteristics: all are male, between the ages of twenty-one and sixty, and were unarmed at the time of their interactions with police. (47) Notably, the failure of law enforcement to recognize or acknowledge the signs of mental illness or medical distress is a common theme in the moments preceding these victims' deaths. (48)

   Seven deaths were the result of gunshots; six, the result of cardiac arrest while being restrained or as the result of a physical altercation; three, the result of tasering; and one, the result of brutal physical assault while restrained. (49) Ten of the seventeen men were Black, four were White, and three were Hispanic/Latino. (50) Where reliable census data could be found, the average income of the victims' neighborhoods was $39,116, placing the victims in the lower income tier for both the state and nation. (51) For less than half of the victims, the incident induced a prosecutor to bring the case before a grand jury; in only two of these did a grand jury hand up a "yes" bill. (52) Finally, in cases not otherwise still under investigation or pending civil resolution, as of the writing of this article, the families of three of the victims received settlements ranging from $1.25 million to $5.9 million. (53)

   With these victims close in mind, this article explores the practical and procedural hurdles met during the search for police accountability though New York's criminal and civil courts. While the pursuit of justice through these channels is an option for holding police accountable for misconduct, criminal cases, if they materialize at all, are plagued by grand juries' consistent declination to indict police suspects. (54) Civil cases (55) for excessive force or wrongful death are not only costly to maintain, (56) but are often dismissed on the papers, (57) weigh in favor of police accounts, or, due to economic considerations, result in settlements without meaningful evaluation on the merits. (58)

4. QUIS CUSTODIET IPSOS CUSTODES?

   By virtue of their profession and the obligations set out by law, police officers are frequently required to act in defense of the public and in their own defense (59)--realities that require both attention to situational nuances and acknowledgement of an officer's perceptive fallibilities, particularly in the retrospective context of civil claims and criminal prosecution. (60) There is no dispute that policing involves the threat of violence against officers and the use of violence by officers. (61) Yet, there is little consensus as to whether force is appropriate when used as a particular type of shield, and also as to who or what is to blame for perceptions that excessive force is appropriate where it may in fact not be. (62)

   Despite the laudable fact that police officers have bound themselves to a profession where risks are constant, danger is omnipresent, and duty requires extraordinary acts, officers are not "priests in blue." (63) Where an officer's limitations and flaws exist, in conjunction with his or her strengths, a duty to protect and serve filters through whatever social or institutional teachings have been imparted upon his or her subjective view of the world. (64) In the crucible of policing--as with many high-stress professions--derivative aggression, comradely hazing, and gallows humor are part of the culture. (65) But policing is distinct. Its historical arc tacks to America's legacy of racial division, the protection of capitalist-class assets and interests, and the assertion of authoritarian power and control as apportioned to social, political, or economic anxieties. (66) Thus, otherwise benign cultural features layer just beneath that particular history. (67) Actions taken in this context, including misconduct, are inevitable at best, and in their worst iterations, are tacitly sanctioned by superiors and peers. (68)

   Police departments' internal investigators are well equipped to flag, review, and punish officers who violate department standards, rules, and the law. (69) Yet, when misconduct is the issue, internal investigations have been assailed as being biased, ineffective, and preservative...