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Police Shootings: A Tough Job and Misconduct

It can scarcely be questioned that police officers have a very difficult job that exposes them to far more danger than most any other job. At the same time, there are many everyday Americans who feel unsafe around police officers. It is doubtless that police misconduct does occur, but there are many incidents where it is not so clear whether misconduct has taken place. In the past few months, many such events have taken place, stoking tempers in both law enforcement and civil rights groups. Is the outrage warranted? Has there been police misconduct? Let’s look at two recent incidents.

“It Looks Like a Firearm That Could Kill You”

One such incident took place in Columbus, Ohio. The situation was as follows per current reports; an investigation is ongoing.

On September 14, 2016, the Columbus Police Department responded to a report of an armed robbery. A short time after speaking with the victim of the robbery, officers identified three individuals who matched the description given by the victim. Two of those individuals decided to run when ordered to halt by the officers; one of them was Tyre King. During the pursuit, King pulled what looked like a gun from his person. Police 2

At a snap decision, King was shot and killed by Officer Bryan Mason of the Columbus Police Department. Investigation at the scene later found King did have a gun, but it was only a BB gun. However, the BB gun was a very close replica to a common pistol. Police commented at a press release after the incident “it looks like a firearm that could kill you.”King’s companion, Demetrius Braxton, told police that he and King had performed the robbery that was reported. Officer Mason is currently performing desk duties while an official investigation takes place.

The outcome of the incident is, without a doubt, tragic. However, it is another question as to whether Office Mason ought to be disciplined. Under the current reports of the facts, King was reaching for a realistic looking firearm at the time he was shot by Officer Mason. If this was to happen to any person in the US, one might consider it self-defense. One wouldn’t expect that person to accept being shot at. In short, one might accept a person defending themselves in kind. However, one might also assert that Officer Mason could have tased or restrained King instead of shooting him.

Currently, insufficient facts are available as to whether either of these options would have been possible. On balance, under the current reports of the situation, it would be reasonable to not discipline Officer Mason as his actions appear to be legitimate self-defense.

“That Looks Like a Bad Dude”

Another such incident took place in Tulsa, Oklahoma. The situation was as follows per current reports; a lawsuit is ongoing.

On September 16, 2016, Tulsa police received two reports of an abandoned vehicle in the middle of a road blocking traffic. Upon arrival at the scene, Officer Betty Shelby found Terence Crutcher with the vehicle. Upon engaging Crutcher, Officer Shelby noted many indicators that Crutcher was under the influence of drugs or alcohol. Officer Shelby ordered Crutcher to put his hands up and Crutcher complied. Crutcher began to wander back and forth between the abandoned vehicle and Officer Shelby’s police cruiser.

Officer Shelby claims that Crutcher refused to comply with commands given at the scene. At this point, additional officers arrived as did a police helicopter. Crutcher, hands still in the air, walked towards the abandoned vehicle and faced the vehicle. At this point, one of the officers in the police helicopter commented “That looks like a bad dude,” referring to Crutcher. There is a sudden flurry of movement from Officer Shelby and three backup officers. First, one of the backup officers tased Crutcher then a female voice over police radio yells “shots fired!” Officer Shelby had shot Crutcher who fell to the ground and died. Officer Shelby was later placed on administrative leave then charged with manslaughter.

Again, this was doubtlessly a tragic event, but did Officer Shelby deserve the manslaughter charges brought against her? Unfortunately for Officer Shelby, there’s no evidence to support a claim of self-defense. No weapons were found at the scene, nor were any found in Crutcher’s car. Current reports of the events do indicate Crutcher was acting strangely throughout the encounter. However, the mere fact that someone acts strangely should not be sufficient to use deadly force. In fact, according to the video evidence, Crutcher had his hands up through most of the encounter.

Officer Shelby also asserts that Crutcher did not comply with her orders. Even if this were true, which is uncertain at this point, this doesn’t seem sufficient to justify deadly force. Indeed, when backup arrived, the backup officer elected to use a taser to restrain Crutcher. Overall, it seems clear that deadly force was not justified in this situation and therefore it seems fair to charge Officer Shelby.

The Bigger Picture

These incidents were tragic. However, in the bigger picture, we must keep perspective. Law enforcement officers have a difficult job. A dangerous job that puts officers at risk of their life every day. To keep perspective though we must also accept that the authority we grant to law enforcement demands oversight and reasonability. Misconduct must be investigated and, when justified, officers must be disciplined.

Can a Wife Be Charged as an Accessory for Her Husband’s Sexual Assault?

At what point is someone an accessory to a crime? More specifically, does an attempt to cover up someone’s sexual assault make you an accessory to that crime.

There’s quite the controversy surrounding many of Donald Trump’s comments regarding women and claims of sexual assault, but Hillary Clinton is no exception to the scrutiny surrounding these issues. There’s been plenty of negative media following Hillary around regarding her alleged attempt to cover up her husband’s past sexual assault allegations.

Juanita Broaddrick has revived her allegations against the Clintons. If you aren’t familiar with that name, back in 1999 Broaddrick went on national television and alleged that in the 1970’s Bill Clinton raped her in a hotel room. Many doubt the truth of Broaddrick’s allegations, but the rape allegations have resurfaced right before the 2016 Presidential elections—along with some new claims. Broaddrick has expressed her support for Trump because she claims not only did Hillary know about the 1970’s rape, but that Hillary tried to threaten her into remaining silent about it.

This has of course caused an outrage and many are now accusing Hillary of being an accessory to a sexual assault. If the allegations were true, could simple knowledge of the crime be enough to warrant accessory charges? What about threats to remain silent about the crime?

What Exactly Constitutes an Accessory to a Crime?

A person can be considered a party to a crime for a number of different reasons; they can participate in the crime before, during, and/or after the crime is committed. The terms aiding and abetting and accessories are sometimes used interchangeably, but they can be quite different.

Parties to crimes are classified as either a principal or an accessory. The key distinction is what they do to participate in the crime and when they contribute to the crime. Generally, an accessory gets involved after the crime whereas aiding and abetting a crime would be assisting in the criminal act prior to or during the crime. Helping someone evade capture, prosecution, or simply helping to conceal the crime would all be actions that would warrant charges of an accessory after the fact.

Assistance can come in many different forms, though, and doesn’t have to just be actions of concealment or physical assistance. Financial assistance would be another obvious way a person could be an accessory to a crime, but many may not realize providing emotional assistance, depending on the circumstances, could also factor into a prosecution.

Prosecutors Need to Be Able to Prove Certain Elements First

Of course, every state is different, but there are general elements that need to be proven in order for a state to bring a case against someone as an accessory after the fact. The first is the actual commission of a felony, but probably the most important piece is knowledge. Not only must the person possess awareness of the crime, but they must also have knowledge of the assailant’s identity. A person cannot unwittingly help a felon avoid arrest if they had no knowledge of the crime or no knowledge of who the person was in the first place.

For example, housing a criminal wouldn’t warrant an accessory charge if the person had no knowledge of the crime ever taking place and no knowledge of who the person was they were housing. However, housing the criminal to evade police, despite having the knowledge they committed a crime, would warrant accessory charges even if the person took no part in the crime itself.

To sum it up, if a wife, or any person for that matter, helped a sexual assailant conceal their crime then, yes, that person could be charged as an accessory. Threatening a victim to keep them silent would warrant accessory charges because it’s active concealment. It gets trickier, though, when you start talking about simple knowledge of the crime without any active concealment or help to evade prosecution.

Why Don’t Women Report Sexual Assault?

Sexual assault is the most under-reported crime out there.  It’s believed that roughly only 15-35% of all sexual assaults are reported to the police.  That means that there’s at least 65% more sexual assaults happening that aren’t getting reported.  That’s a staggering number.

According to RAINN, on average, there are 288,820 victims of rape and sexual assault each year in the United States.  How many of those are women?  In 1998, it’s estimated that 17.7 million American women had been victims of attempted or completed rape.  Today, 1 out of every 6 women will be a victim of sexual assault.

It’s impossible to know all the reasons why women don’t report sexual assault because it’s an extremely personal decision. There could be a million different reasons coming from just one person and a million other reasons coming from another.  There are, however, some common themes we see that pop up time and time again.

Women Not Being Treated as an Actual Victim Is One of the Biggest Reasons of Underreporting

It’s no secret that women are often not treated as a victim when it comes to sexual assault and abuse cases.  There’s a lot of attention surrounding the idea that there’s a rape culture prevalent in our society that normalizes sexual violence and blames the victim, which is unfortunately a common theme we see today.

Brenda Tracy, an Oregon woman who often speaks out about her sexual assault case that was mishandled in 1998, summed up her feelings regarding the issue pretty succinctly in a Twitter post:

Everyone wants to know “if you were raped why didn’t you report it?” The real question is “Why WOULD you report it?”

Tracy’s statements came after the release of a Department of Justice report on Baltimore’s police department and their handling of sexual assault cases. At the time of the report, only 17% of the reported sexual assault cases to the Baltimore Police Department resulted in an arrest.  That’s pretty low, so why aren’t more arrests happening?

Within the report, it was found that officers routinely questioned sex crime victims in a way that put the blame on the victims themselves, rather than the assailants.  For example, officers would ask, “Why are you messing up that guy’s life?” and often suggest the victims were lying.  One prosecutor was even caught calling a victim a “conniving little whore” within an email to a Baltimore police officer.  If other police departments are following in the same suit, this suggests arrests aren’t happening because sexual assault victims aren’t believed to be actual victims.

Personal Relationships Are Also a Big Factor

A victim’s relationship with the offender can often have a strong effect on the likelihood of reporting. According to a report done by the Maryland Coalition Against Sexual Assault, of the sexual assaults that are committed by an intimate partner or former partner, only 25% of those cases are reported.

When the offender is a friend or acquaintance, between 18-40% get reported, while when the offender is a stranger, the number increases between 43-66%. Let’s not forget that these numbers are only percentages of the already low percentage of victims that actually do report.

Fear is Another Big One

There’s a number of reasons a victim could be fearful to report a sexual assault. It could range from fear of retaliation (which makes up about 20% of the non-reporters), fear of being shamed by family and friends, fear of the justice system, fear that there’s a lack of evidence, fear of reliving the crime, or fearing that the police won’t do anything to help, just to name a few.

Fifteen percent of non-reporters cited they either didn’t believe the police would do anything or believed the police couldn’t do anything to help them. Often times, sexual assault cases can drag on and on, requiring the victim to continue to relive the crime over and over again.  Even after going through the process of prosecuting an assailant and reliving the experience, lenient sentences are often handed out which only further demeans the severity of these crimes for the victims.

These lenient punishments seem especially prevalent of late. Austin Wilkerson, a University of Colorado-Boulder student, was convicted of sexually assaulting a helpless victim as she drifted in and out of consciousness.  He was only sentenced to 2 years of work release and 20 years of probation—no jail time.  This case received a lot less media attention than the Brock Turner case, another student who received a surprisingly lenient sentence for raping a fellow student.

RAINN reports that out of every 1,000 rapes, 994 assailants walk free. That’s 6 out of every 1,000 sexual predators receiving actual punishments.  To top that off, sexual predators are less likely to see any jail or prison time than any other criminal.  Those stats are extremely disturbing.  It’s no wonder victims who don’t report fear it wouldn’t do anything to help.

Defining Sexual Assault For Politicians Who Don’t Get It

I’ve got to use some Tic Tacs, just in case I start kissing her…You know I’m automatically attracted to beautiful—I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the p—y. You can do anything.

Most have heard, or at least read, Mr. Trump’s recorded statements on his behavior around women. Trump himself has described the comment as locker room talk.  However, in the wake of the comments, a number of women have come forward to accuse Trump of sexual assault.  For instance, a woman named Jessica Leeds has accused Trump of fondling her on an airplane.  Trump has responded to these accusations by, among other things, arguing that the women who have come forward are not attractive enough for him to assault.

For obvious reasons, Trump’s words have drawn broad criticism from politicians on both sides of the aisle. Many prominent Republicans, such as John McCain, have even withdrawn their support for Trump’s candidacy for president.

However, this withdrawal of support has been halfhearted to say the least. Many Republican politicians who denounced Trump—such as South Dakota Senator John Thune, New Jersey Representative Scott Garrett, and Alabama Representative Bradley Byrne—have gone on to make it clear that their denunciation of his statements is still not enough to stop them from casting their vote in his favor.  Rape

Some politicians have taken a different approach to the comments. When asked in an interview, Alabama Senator Jeff Sessions stated that he wouldn’t characterize what Trump was describing as sexual assault.  In a follow up, he was asked “So if you grab a woman by the genitals, that’s not sexual assault?”  Senator Sessions responded “I don’t know.  It’s not clear that he—how that would occur.”

Jeff Sessions has since issued a statement that he has been misrepresented based on this interview and his response was based on confusion as to Trump’s words and the question posed by the reporters. With this in mind, it seems worth clearing up confusion on what is sexual assault under the law.  Just as a favor to the good Senator.

Understanding the Crimes and Causes of Action of Sexual Assault

Sexual assault is when any sexual activity occurs without clear consent from both parties. While the exact elements of the crime vary from state to state, it is a crime in every state. Sexual assault laws also forbid sexual activity with a person who is unable to consent such as people who are mentally ill, under the age of 18, or intoxicated are considered unable to consent. There are more specific crimes, also with elements that can vary quite a bit from state to state, that fall under the umbrella of sexual assault, such as: rape, molestation, forced sodomy, and incest.

Sexual assault does not require, but may include, force or threat of force. Instead, they hinge on the sexual touching being unwanted and offensive.  This can cover a wide range of types of victimization.  As an example, where a person—without any comment, warning or consent—were to kiss a woman or, “grab them by the p—y” that would unquestionably be criminal sexual assault.

The most grotesque and savage or crimes falling under the umbrella of sexual assault is, of course, rape. The exact elements of rape vary more drastically from state to state than any other crime of sexual assault, with some states requiring penetration by male genitalia, while others have a broader approach to include other unwanted sex acts.  Some states do not recognize rape committed by a spouse, while most do not make the distinction. While these are the most common distinctions, there are many other variations depending on the state.

At its core, rape is a forced sex act achieved by force or threat of force. This can include psychological coercion as well as physical force.  Depending on the rape statute and the exact facts, grabbing a woman “by the p—y” could very well rise to the level of rape.

Both sexual assault and rape give rise to civil charges as well as criminal charges if the victim wishes to bring such a case against the person who attacked them.

Sexual Assault in the U.S.

About 20 million out of 112 million women in the U.S., nearly one in five, have been raped during their lifetime. Nearly 300,000 people aged 12 and older are victims of rape or sexual assault in the U.S. during any given year. Even with numbers this high, authorities still estimate that only approximately a third of all sexual assault cases are reported to the police.

Despite the seriousness of this issue, there seems to have been substantial confusion amongst politicians as to what exactly represents sexual assault or rape. It has not been so long since the infamous “legitimate rape” comments from Former Missouri Representative Todd Akin.  In the recent debates, Mr. Trump took quite a bit of pressing on his comments before finally stating that he never acted on his words—dancing around the question of whether he understood that his recorded remarks described sexual assault.

Sexual assault is too serious an issue to trivialize its promotion as “locker room talk” and too dangerous to let those with the most power over passing litigation to misunderstand. It is crucial that our leaders recognize and condemn these heinous acts with more than just empty words.  Our leaders need to understand the problem and be part of the solution.

Blowing the Whistle: Former Illinois Police Officer’s Retaliation Lawsuit

The police are there to ensure that laws are neutrally enforced. However, when police start showing favoritism to those with political connections, it often must be the police themselves who bring it to the attention of the public.  This was the situation which, at least allegedly, faced former Village of Orland Hills police officer Mr. David Kristofek.

Mr. Kristofek has been embroiled in a lawsuit with both the Village and its police chief for several years, accusing them of firing him in retaliation for his reporting inappropriate police behavior to the FBI. After narrowly avoiding dismissal several times, his case has just recently  passed the summary judgement phase.

The Village of Orland Hills Turns a Blind Eye

The facts certainly don’t look good for the Orland Hills police. After a traffic stop revealed that that a young man named Alonzo Marshall was driving a car with a suspended registration due to lack of insurance, Mr. Kristofek—along with two other police officers—arrested the man per police department policy.

However, after a slew of phone calls between Mr. Marshall, his mother, the Mayor of Village of Orland Hills, and the police chief Thomas Scully, Mr. Marshall was released and all record of the arrest was confiscated from Mr. Kristofek and deleted from police computers.  When Mr. Kristofek complained to the deputy police chief about the situation, he was told ““Did you not understand what you were [expletive] told?”  The deputy later told Mr. Kristofek that the situation was “above you and me.” Body Cam

Several months later, Mr. Kristofek attended a training seminar on official police misconduct. Ironically, the seminar included a hypothetical with near identical facts to the incident with Mr. Marshall and described it as official misconduct.  Mr. Kristofek grew concerned that he may be criminally liable for his actions and sought legal advice on the issue.  He was advised to report the incident to the FBI and reached out to the other two police officers on the arrest to join him in reporting the misconduct.  The other two officers both declined and Mr. Kristofek reported the incident alone.  What the two officers did do, however, was inform the police chief—Mr. Scully—that Mr. Kristofek was speaking with the FBI.

After learning this, Mr. Scully called Mr. Kristofek to his office, had him confirm that he was speaking to the FBI, and offered him a choice to resign or be fired. Kristofek refused to tender his resignation and was fired.  Scully spoke with a Village Administrator who approved the firing.  The stated reason was that Kristofek “contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted,” and had “accused the Village of being corrupt.”

Mr. Kristofek filed a retaliation lawsuit against both Police Chief Scully and the Village of Orland Hills itself shortly after this.

Retaliation Explained

Retaliation, at its most basic, is where an employer takes negative employment action (firing, demoting, etc.) against an employee for some sort of protected conduct. Most retaliation lawsuits deal with an employee being fired for reporting an employer’s illegal employment practices.  However, it can apply where an employer takes negative employment action for basically any action an employee takes that is protected by law.

Here, Mr. Kristofek is making a First Amendment retaliation claim, arguing that he—as an employee of the government—was fired for exercising his right to free speech. This a claim that only really applies to public employees as private employers have a great deal of leeway when it comes to firing you for speech they don’t agree with.

In order to succeed in a First Amendment retaliation claim, a public employee such as Mr. Kristofek must show three things:

  1. their speech was constitutionally protected,
  2. this protected speech was the cause of negative employment action taken against them by their employer, and
  3. the employee suffered a harm as a result of this negative employment action.

In this case, the last bit isn’t particularly controversial; if you lose your job, you have been harmed.  The evidence also seems to point towards Mr. Kristofek being fired over speaking to the FBI.  This means that the more complicated issue is whether his speech was protected.

It certainly seems like it should be. If police aren’t protected when they blow the whistle on the misconduct of their fellow officers, it sets a heck of a bad precedent.

Mr. Kristofek’s Case So Far

The district court has dismissed Mr. Kristofek’s case not once, but twice, ruling against him on essentially every factor from whether he was speaking pursuant to his duties to whether the speech was even of public concern. Fortunately, the 7th Circuit Appeals court has reversed the district court both times and salvaged Mr. Kristofek’s lawsuit. This most recent time, the 7th Circuit has even assigned a new district court judge to review the case.

Scully successfully argued to the district court that reporting police misconduct is part of a policeman’s duties and thus speech in this vein is not made as a private citizen. He also argued that the speech was not of public concern, the interest in efficient police duties outweighed the interest in reporting to the FBI, and that the allegations themselves were baseless.

The 7th Circuit Appeals Court was buying none of it. Not only did they point out that courts have always considered reporting corruption a matter of serious public concern, they rejected Sully’s argument that reporting corruption was part of Kristofek’s job. This argument seems particularly silly; it amounts to an argument that Kristofek was fired for doing his job. However, the court rejected it on the grounds that there was no evidence that Kristofek had a duty as an officer to report the incident. The truth of the statements was ruled to be irrelevant because Kristofek’s speech would be protected, regardless of truthfulness, unless he actually knew or was reckless in not knowing that his allegations were false.

While the court felt that the interests weighed in favor of Mr. Kristofek in this case, they made it clear that there could be some cases where the interest in reporting potential misconduct could be outweighed by the disruption it could cause. Misconduct, as a strong public concern, requires a particularly convincing reasons to outweigh the public’s interest. However, where there is little factual basis to the allegations, the court said that the public’s interest could be outweighed.

Preventing police corruption is extremely important, just like all government corruption. The people closest to that corruption are the public employees who work around it.  It’s important that we zealously protect their ability to report misconduct because these employees may be the only people who could report such conduct.  This case is far from over, but the 7th Circuit Appeals court has helped ensure that public employees are receiving the protection they need.