Last week, two stories of police shootings on opposite sides of the country made the news. The Seattle Times reported the story of a man who was sleeping in bed when two police officers opened his bedroom door, demanded an ID, and when he reached for his wallet to give them his ID, the officers opened fire and shot him 16 times. The officers had arrived at the house with a warrant for his housemate for failing to check in with a probation officer, and they had already removed his housemate from the house at that time. The victim survived but had to go through multiple surgeries and spend months in recovery. His medical bills were hundreds of thousands of dollars, and he will likely never fully recover and never work again. He filed a civil lawsuit for excessive force in federal court and the case eventually settled for $5.5 million.
On the opposite side of the country, the Washington Post reported the story of a Pennsylvania police officer who attempted to pull a man over for expired emission tags, and after the man drove away and then ran on foot, the officer shot him with a Taser two times in the back, and then shot him twice in the back and killed him after he fell to the ground. Reminiscent of the shooting of Oscar Grant in Oakland, the man was unarmed, lying face down on the ground, and had nothing in his hands at the time the officer shot him in the back and killed him. Ironically, the officer’s Taser camera recorded the fatal shooting, and provided the local district attorney with evidence to file criminal homicide charges against the officer.
What these stories have in common is the presence of police officers that violently and unnecessarily overreacted and caused irreparable harm to unarmed civilians who were not criminals and posed no danger to anyone. These officers operated under the assumption to shoot first, and ask questions later. As civilian policing becomes more and more militarized, this combat mentality is having devastating consequences. We have a justice system in this country that requires probable cause to arrest, innocent until proven guilty, and trial by jury before conviction and sentencing. Even if the individual is convicted, the death penalty is usually not issued as the sentence. Our justice system is turned on its head when police officers are free to act as judge, jury, and executioner and carry out the death penalty as their first response to a stressful situation.
Amid the seemingly never-ending news of police shootings and killings of unarmed civilians, there is a rising public demand for more police accountability. To placate this growing demand, a few months ago, Congress passed a new version of the Death in Custody Reporting Act, 42 U.S.C. 13727. This law, which is a revised version of a law that has been on the books for over a decade, requires state and federal law enforcement agencies to report how many people are killed by their police officers. The idea is that all of the state and federal law enforcement agencies will report these police-caused deaths to the U.S. Attorney General, who will then analyze the data and publish reports with that information. Although the law never really worked in the past, politicians promise that this version will work because there are penalties now if the law enforcement agencies do not comply.
The language of the law states that the states must report to the Attorney General on a quarterly basis the following information: “information regarding the death of any person who is detained, under arrest, or is in the process of being arrested, is en route to be incarcerated, or is incarcerated at a municipal or county jail, State prison, State-run boot camp prison, boot camp prison that is contracted out by the State, any State or local contract facility, or other local or State correctional facility (including any juvenile facility).”
For each person killed by police, each state must report:
“(1) the name, gender, race, ethnicity, and age of the deceased; (2) the date, time, and location of death; (3) the law enforcement agency that detained, arrested, or was in the process of arresting the deceased; and (4) a brief description of the circumstances surrounding the death.”
If a state does not comply, the Attorney General may, in her discretion, choose to withhold up to 10% of federal funds for law enforcement operations in that state. The key word here is “discretion.” This means that the Attorney General can also choose not to issue any penalty at all for noncompliance, which basically renders the law toothless. Also, the law does not apply to any state that can prove that complying with the law is unconstitutional under its state constitution.
A separate provision of the law also sets forth substantially the same requirements for all federal law enforcement agencies.
If any data is actually provided, the Attorney General must complete a report by December 18, 2016 that “examine[s] the relationship, if any, between the number of such deaths and the actions of management of such jails, prisons, and other specified facilities relating to such deaths.” All data from state and federal law enforcement agencies must be included in this report.
We can imagine what the report would find if all of the law enforcement agencies in the country actually provided all the required data under this law. So is there any way to make sure that our local law enforcement agencies are complying with this law? One way to check up on your local law enforcement agency to see if it is complying is to file a public records request under your state’s public records laws for any documents that indicate whether or not your local law enforcement agency is complying with the reporting requirements of the Death in Custody Reporting Act. Additionally, if you are seeking this information from a federal law enforcement agency, you can file a similar public records request under the Freedom of Information Act.
If you decide to file these record requests in your community, let us know what you find out.
Rebecca K. Smith is Board Secretary and Cooperating Attorney at the Civil Liberties Defense Center.