Sunday, October 31, 2021
My cousin killed a child at age 16. Does he deserve to die in prison?
"Too often, the law decides that a child is not a child.Katharine Blake is the author of "The Uninnocent: Notes on Violence and Mercy." She is a graduate of Stanford Law School and lives in Virginia.
There were no discernible warning signs. My cousin was kind and got good grades and played varsity soccer. He and the boy had never met. When my mother called to tell me about it, she said he’d had “a break.” And after hours of evaluation and examination, the only diagnosis he ever got was, in fact, “psychotic break,” which, for the purposes of the law, is equivalent to no diagnosis. No diagnosis meant no meaningful chance for an insanity defense. At 16, my cousin was convicted as an adult in criminal court, and after years awaiting sentencing at a county jail, given life without parole at a maximum-security prison. On his way to the prison, he told me later, he had a panic attack and blacked out. When it was time to get out of the vehicle, he couldn’t walk. He had to be carried through the gates.
An estimated 1,500 people are serving life sentences without the possibility of parole for crimes they committed as children. Ninety-five thousand others, according to the Equal Justice Initiative, are housed in adult jails and prisons each year. Our separate juvenile justice system exists, in theory, because children — even those who have committed terrible violence — are both more vulnerable than adults and uniquely capable of change. Yet too often, the law decides that a child is no longer a child, and sentences him to an adult facility, sometimes for the rest of his life. And even our juvenile justice system, in many cases and places, has lost touch with its original mission to protect children and foster their rehabilitation.
The legal mechanism that allows a young person to be tried as an adult is called a “transfer.” The underlying rationale is that some children are too bad to be treated like children, or too bad to ever be good again. This rationale facilitates not only transfers but also sentencing. You’ll find its explicit enunciation in each of the Supreme Court’s recent decisions about the fate of children who break the law, a series of cases that, up until this year’s ruling in Jones v. Mississippi, evolved toward leniency: Roper v. Simmons (2005) banned the death penalty for those under 18; Graham v. Florida (2010) banned juvenile life without parole (LWOP) for all nonhomicide crimes; Miller v. Alabama (2012) banned mandatory LWOP for those under 18; Montgomery v. Louisiana (2016) extended Miller retroactively. Though taken together, these decisions formed a wave of momentum toward reform, each decision also preserved a carve out for the child who the Court deemed “irreparably corrupt,” or “permanently incorrigible.” That child who’s too bad to ever be good again.
The Court made clear, in dicta, that such a child is rare. As Justice Anthony M. Kennedy observed in Graham, “incorrigibility is inconsistent with youth.” And some states took these urgings to heart. In the years since Miller, 25 states have banned LWOP for juveniles.
But dicta isn’t binding. Other states paid no heed to the Supreme Court’s urgings of rareness. In Mississippi, eight out of 12 juvenile defendants convicted of murder since Miller have gotten LWOP. In Michigan, following Montgomery’s mandate to offer resentencing hearings to those given LWOP as teenagers, prosecutors denied parole for 60 percent of juvenile lifers. (That includes Evan Miller and Henry Montgomery, who are both still serving their life sentences, despite the landmark cases that bear their names.)
Transfers aren’t rare, either. In Arizona, 82 percent of young people arrested for violent crimes are waived to the adult system. If the question is, when is a child not a child, the answer seems to be, all the time. And especially if the child is Black: Black young people account for 54 percent of transfers nationally, and 70 percent of those sentenced to LWOP since Montgomery. In many states, the exception of the permanently incorrigible young person is far from exceptional.
Leaving aside the factual impossibility of legal “incorrigibility” — how could anyone know such a thing about a young person’s future? — such a notion cuts against the founding mission of the juvenile justice system. In the 19th century, it was a group of women in Chicago who saw the cruelty of a legal system that failed to distinguish between children and adults. After a concerted campaign, these women (many of whom, including Lucy Flower and Julia Lathrop, spent time at Hull House and went on to be pioneers of the Progressive Era) established the first juvenile court in Cook County, Ill. By 1925, there was a juvenile court in every state except for Maine and Wyoming. The purpose of these courts, according to their advocates, was to treat children differently than adults — and to rehabilitate rather than punish.
How far we’ve come from these intentions. Though outcomes are grim for children sentenced to adult jails and prisons — children in adult prisons, for instance, are 36 times more likely to commit suicide than those in juvenile detention centers — even those who remain inside the juvenile system often face conditions that harm rather heal. This month, the Justice Department announced its investigation into five juvenile detention centers in Texas. According to a filed complaint, the reports of abuse included guards impregnating juveniles; guards kicking, body-slamming and choking juveniles to unconsciousness; and an uptick in suicide attempts among juveniles in custody. (Pause here. Replace the word “juveniles” with “children.”)
Though not every facility is as bad as those cited in Texas, some combination of sexual assault, relentless violence, excessive chemical and physical restraints, torture in the form of prolonged isolation and inhumane conditions pervades the juvenile justice system no matter the geography and no matter the form of incarceration. And there are many forms, some bearing perfectly innocuous names: wilderness camps, boot camps, halls, campuses, academies and group homes. Studies have shown that confining children in any setting only increases recidivism and does not make the public any safer.
Of course, there are good actors inside this broken system. Recent reforms, such as rolling back the zero-tolerance policies that have fueled the school-to-prison pipeline, show promise. But at bottom, we have a juvenile justice system whose foundational purpose is to rehabilitate, composed of facilities that make rehabilitation impossible; it also regularly deems children too bad to be rehabilitated, whereby their prospects for a safe life — safe for themselves and others — are all but obliterated. So far, we have not figured out how to lock up a child without perpetuating degradation for the both the imprisoned and the imprisoner, no matter how wholesome the endeavor sounds.
Since my cousin was arrested, I’ve sometimes felt there’s little to be certain of. I have watched him grapple with his crime. I know that he’s unspeakably sorry. In prison, he has worked to build a life — victim awareness classes, church on Sundays, Bible college — and this, to me, looks not at all like “permanent incorrigibility.” Still, I don’t know what should happen to him. Despite my policy opinions, I can’t tell his victim’s family that they’re wrong for wanting him to suffer; I’ve never known their pain.
So in confronting the question of just deserts — what does someone deserve who has taken another life? — I hold onto the words of attorney Bryan Stevenson: “The power of just mercy is that it belongs to the undeserving.” That is mercy’s whole point: No one who needs it deserves it.
And in answer to a related but distinct question — what does a child deserve who has taken another life? — our American exceptionalism speaks volumes: We are the only country in the world that sentences young people to die in adult prisons.
Which is to say, despite all there is to be uncertain of, the way we treat children who break the law reflects a mercilessness at the heart of our carceral crisis, and a sickness at the heart of this country."
In Virginia’s Culture Wars, One Battle Has Already Been Lost
"Join Jamelle Bouie as he shines a light on overlooked writing, culture and ideas from around the internet.
On Tuesday, Virginians will vote to choose their next governor. The Democratic candidate is Terry McAuliffe, who served as governor from 2014 to 2018 but was term-limited out of office. The Republican candidate is Glenn Youngkin, a private equity executive and newcomer to electoral politics.
There are real, material issues at hand in Virginia, where I grew up and where I currently live, from transportation and housing costs to climate, economic inequality and, of course, the commonwealth’s response to the Covid-19 pandemic. The battleground for this election, however, is culture, identity and the specter of the previous president.
McAuliffe and his supporters want Virginians to feel that a vote for Youngkin is a vote for Donald Trump. “I ran against Donald Trump and Terry is running against an acolyte of Donald Trump,” said President Biden while speaking at a rally Tuesday night in Arlington. “We have a choice,” said McAuliffe at the same event. “A path that promotes conspiracies, hate, division, or a path focused on lifting up every single Virginian.”
Youngkin, for his part, wants Virginians to know that a vote for McAuliffe is a vote for “critical race theory.” Not the legal discipline that deals with the distance between formal and actual equality, but the idea, spread by right-wing activists and their wealthy supporters, that public schools are teaching a racist ideology of guilt and anti-white sentiment. Youngkin’s singular message has been that he will keep this “critical race theory” out of Virginia’s schools.
What this means, if the rhetoric of Youngkin’s strongest supporters is any indication, is an assault on any discussion of race and racism in the state’s classrooms. In an interview with the journalist Alex Wagner, a leading Republican activist in Virginia said exactly this, asserting that it should be “up to the parents” to teach students about racism and condemning a school assignment in which a sixth grade student blamed President Andrew Jackson for violence against Native Americans.
Try to imagine what this would look like.
Virginia is where African slavery first took root in Britain’s Atlantic empire. It is where, following that development, English settlers developed an ideology of racism to justify their decision to, as the historian Winthrop Jordan put it, “debase the Negro.” It is where, in the middle of the 18th century, a powerful class of planter-intellectuals developed a vision of liberty and freedom tied inextricably to their lives as slave owners, and it is where, a century later, their descendants would fight to build a slave empire in their name.
And all of this is before we get to Reconstruction and Jim Crow and massive resistance to school integration and the many other forces that have shaped Virginia into the present. Just this week came news of the death of A. Linwood Holton, elected in 1969 as the state’s first Republican governor of the 20th century. Holton integrated Virginia schools and broke the back of the segregationist Byrd machine (named for the domineering Harry F. Byrd), which controlled the state from the 1890s into the 1960s.
To take discussions of race and racism out of the classroom would, in practice, make it impossible to teach Virginia state history beyond dates, bullet points and the vaguest of generalities.
One of the closing advertisements from the Youngkin campaign features a woman who took umbrage over Toni Morrison’s “Beloved” after her son, a high-school senior, said that the book gave him nightmares when he read it as part of an A.P. English class. (I do not doubt that this is true, but I also think that if Black students have to encounter racism — and speaking from experience, they do — then white students should at least have to learn about it.)
Democracy requires empathy. We have to be able to see ourselves in one another to be able to see one another as political equals. I think history education is one important way to build that empathy. To understand the experiences of a person in a fundamentally different time and place is to practice the skills you need to see your fellow citizens as equal people even when their lives are profoundly different and distant from your own. This is why it’s vital that students learn as much as possible about the many varieties of people who have lived, and died, on this land.
This democratic empathy is, I believe, a powerful force. It can, for example, lead white children in isolated rural Virginia to march and demonstrate in memory of a poor Black man who died at the hands of police in urban Minnesota.
I do not know who will win the Virginia election. It looks, at this point, like a tossup. But I do know that, viewed in the light of empathy and its consequences, the panic against critical race theory looks like a rear-guard action in a battle already lost: a vain attempt to reverse the march of a force that has already done much to undermine hierarchy and the “proper” order of things"
Why Many Police Traffic Stops Turn Deadly
An investigation into traffic stops across America and the deaths of hundreds of motorists at the hands of police.
“Hands out the window now or you will be shot!” yelled a patrolman in Bakersfield, Calif., as Marvin Urbina wrestled with inflated airbags after a pursuit ended in a crash.
“I am going to shoot you — what part of that don’t you understand?” threatened an officer in Little Rock, Ark., adding a profanity, as she tried to pry James Hartsfield from his car.
The police officers who issued those warnings had stopped the motorists for common offenses: swerving across double yellow lines, speeding recklessly, carrying an open beer bottle. None of the men were armed. Yet within moments of pulling them over, officers fatally shot all three.
The deaths are among a series of seemingly avoidable killings across the United States. Over the past five years, a New York Times investigation found, police officers have killed more than 400 drivers or passengers who were not wielding a gun or a knife, or under pursuit for a violent crime — a rate of more than one a week.
Most of the officers did so with impunity. Only five have been convicted of crimes in those killings, according to a review of the publicly reported cases. Yetlocal governments paid at least $125 million to resolve about 40 wrongful-death lawsuits and other claims. Many stops began with common traffic violations like broken taillights or running a red light; relative to the population, Black drivers were overrepresented among those killed.
The recurrence of such cases and the rarity of convictions both follow from an overstatement, ingrained in court precedents and police culture, of the danger that vehicle stops pose to officers. Claiming a sense of mortal peril — whether genuine in the moment or only asserted later — has often shielded officers from accountability for using deadly force.
“We get into what I would call anticipatory killings,” said Sim Gill, the district attorney for Salt Lake County, Utah. “We can’t give carte blanche to that.”
In case after case, officers said they had feared for their lives. And in case after case, prosecutors declared the killings of unarmed motorists legally justifiable. But The Times reviewed video and audio recordings, prosecutor statements and court documents, finding patterns of questionable police conduct that went beyond recent high-profile deaths of unarmed drivers. Evidence often contradicted the accounts of law enforcement officers.
Dozens of encounters appeared to turn on what criminologists describe asofficer-created jeopardy: Officers regularly — and unnecessarily — placed themselves in danger by standing in front of fleeing vehicles or reaching inside car windows, then fired their weapons in what they later said was self-defense. Frequently, officers also appeared to exaggerate the threat.
In many cases, local police officers, state troopers or sheriff’s deputies responded with outsize aggression to disrespect or disobedience — a driver talking back, revving an engine or refusing to get out of a car, what officers sometimes call “contempt of cop.”
In dashboard- and body-camera footage, officers could be seen shooting at cars driving away, or threatening deadly force in their first words to motorists, or surrounding sleeping drivers with a ring of gun barrels — then shooting them when, startled awake, they tried to take off. More than three-quarters of the unarmed motorists were killed while attempting to flee.
“We have got to take him out,” an Oklahoma state trooper declared over the radio in 2019 to patrolmen chasing a man in McAlester suspected of shoplifting a bottle of vodka. The officers used their cars to force his S.U.V. from the road,opened a door as it rolled slowly past and shot from both sides, killing the driver, dashcam footage shows.
A Tennessee sheriff ordered his deputies to fire at a motorist with a suspended license in 2017: “Don’t ram him, shoot him!” he later recounted saying, according to a body-camera recording. Knocking the man off the highway might “tear my cars up!”
Struggling to subdue a driver a few months later, a patrolman in Moundridge, Kan., warned that the man might be reaching for a police sidearm; an officer shot him, another struck his head with the butt of a shotgun and a third pummeled his body with a baton — killing him though he never touched a gun, video records show. And last year a body camera recorded an officer in Las Cruces, N.M., warning a motorist that he would “choke you out, bro,” then pinning him in a headlock. “A good little scrap,” the officer called it, before realizing the man had died.
Some families of the drivers said that their relatives were not blameless. “I don’t have my head buried in the sand,” said Deborah Lilly, whose 29-year-old son, Tyler Hays, had drugs in his car and tried to run away when he was pulled over for tinted windows last year by a sheriff’s deputy in Hamilton County, Tenn. “I am just saying he did not deserve to get shot in the back.” (Over the next three months, the deputy shot at two other unarmed drivers, wounding one.)
Almost all of the officers involved in these cases declined to comment or could not be reached. Advocates for the police argue that the dangers of stopping cars require readiness to use deadly force. “I have watched enough videos of an officer who is not on edge enough and his dashcam films his own death,” said Larry James, general counsel of the National Fraternal Order of Police. “What are you going to do? Are you going to be indicted, or are you going to be buried?”
Traffic stops are by far the most common police encounters with civilians, and officers have reason to be wary in their approach: They don’t know who is inside a car or whether there are weapons. Ten officers have been killed this year in such interactions, including a Chicago officer who was shot in August by a passenger during a traffic stop for an expired registration.
But some police chiefs and criminologists said that alarmist training about vehicle stops has made officers too quick to shoot at times, resulting in needless killings. Academies and commanding officers often rely on misleading statistics, gory cop-killing videos and simulated worst-case scenarios to instill hypervigilance. Many officers are trained to place a hand on the trunk of the car as they approach, to leave fingerprints as evidence if ambushed by the driver.
“All you’ve heard are horror stories about what could happen,” said Sarah Mooney, assistant police chief in West Palm Beach. “It is very difficult to try to train that out of somebody.”
The overemphasis on danger has fostered tolerance for police misconduct at vehicle stops, some argue.
“Prosecutors and courts give more leeway to officers’ decisions to use force at vehicle stops, as a result of the exaggerated concern about the potential for officers getting hurt,” said Michael Gennaco, a consultant to police departments on officer accountability and a former Justice Department prosecutor. “Officers would likely kill fewer drivers if there were deterrence.”
‘The Most Dangerous Thing’
Three sheriff’s deputies surrounded a beat-up Mercedes with a broken taillight in Clark County, Wash., in February. The tools strewn across the passenger seat worried them immediately, they later told investigators.
“That right there can hurt someone,” said Deputy Holly Troupe.
The driver’s retorts set off more alarms. “You need to chill out!” she recalled him parroting back to her.
To help force him out of the car, Deputy Sean Boyle punched the driver in the nose. Deputy Troupe grabbed him below the jaw in what she called “pain compliance.” But the driver, Jenoah Donald, a 30-year-old mechanic who had autism and struggled with drug addiction, started the car with one hand and clutched Deputy Boyle’s ballistic vest with the other, the officer later said.
Deputy Boyle, though he had 70 pounds on the driver, told investigators he had feared he might be stuck half-inside a moving car: “I was convinced, ‘This is how you are going to die,’” he later told investigators. So he shot Mr. Donald in the head.
Prosecutors questioned whether the stop would have ended differently if the officers had explained to the driver why they were ordering him to leave the car. But Deputy Boyle, with two decades on the job, had fired “in good faith,” the prosecutors concluded.
“I know from the academy that they tell you traffic stops and D.V.s” — domestic violence cases — “are the most dangerous thing we’ll do,” Deputy Troupe, a rookie, told investigators. “I thought, ‘This is why they tell us that.’”
Some officers involved in fatalities at vehicle stops cite their training, which for decades has stressed the perils of those interactions.
In many departments, police academy lessons and daily briefings include a steady diet of body-worn camera videos that depict easygoing officers being gunned down by drivers who whipped out overlooked firearms.
Seemingly every officer in America has watched the 1998 dashcam footage of Deputy Kyle Dinkheller’s murder on the Georgia roadside where he pulled over a veteran with a semiautomatic rifle in his pickup. Roll call briefings often feature fresher reminders, like the images of an officer shot in March outside a Nashville store by a driver who kept a handgun in her purse.
Trainers and tactical guides typically emphasize that vehicle stops account for more killings of officers than almost any other type of interaction.
Of the roughly 280 officers killed on duty since late 2016, about 60 died — mostly by gunfire — at the hands of motorists who had been pulled over, a Times analysis showed. (About 170 other officers died in accidents on the job.) But the assertions about the heightened danger ignore the context: Vehicle stops far outnumber every other kind of police dealings with civilians.
In fact, because the police pull over so many cars and trucks — tens of millions each year — an officer’s chances of being killed at any vehicle stop are less than 1 in 3.6 million, excluding accidents, two studies have shown. At stops for common traffic infractions, the odds are as low as 1 in 6.5 million, according to a 2019 study by Jordan Blair Woods, a law professor at the University of Arkansas.
“The risk is statistically negligible, but nonetheless it is existentially amplified,” said Mr. Gill, the Salt Lake County district attorney and an outspoken proponent of increased police accountability.
State laws generally prohibit police officers from using lethal force unless they reasonably believe it necessary to prevent imminent death or serious injury. Under pressure from street protests over the 2014 killing of Michael Brown, an unarmed Black teenager in Ferguson, Mo., and the more recent Black Lives Matter marches, many police departments have made de-escalation their watchword. They often advise officers to defuse conflict with motorists, for example by listening attentively instead of just barking orders.
“The last thing I need to try to do is exert my authority, like ‘You’re going to do what I tell you to do because I said so,’” said Jon Blum, a former police officer who now writes training materials for police agencies and the International Association of Chiefs of Police. “What the officer has to do is sell the person.”
Departments have increasingly instructed officers to let suspected lawbreakers drive away and find them later, avoiding the risks of potential confrontation or a high-speed pursuit. “You have the guy’s car license plate and you know where he lives,” said Scott Bieber, the chief of police in Walla Walla, Wash. “You go get him in 45 minutes at his house and add a charge of eluding.”
But some veteran officers say the emphasis on avoiding conflict can embolden criminals.
“I’ve actually heard people say, ‘You’re not supposed to chase me, you’re not supposed to pursue,’” said Sgt. Sanford Swanson Jr., a patrolman who is also an instructor for Pro Train, which has taught vehicle-stop tactics to trainers in 38 states. “Sometimes walking away can still pose dangers.”
A Line in the Sand
Genevive Dawes, a 21-year-old mother of two, was asleep with her boyfriend in a Dodge Journey outside a Dallas apartment building before dawn on Jan. 18, 2017.
Someone had reported a suspicious vehicle in the parking lot, and body-camera footage shows six police officers surrounding the car with bright lights and raised guns. “Hands up!” one shouted, video footage shows. “Show your hands! Don’t move!”
Ms. Dawes, awakened, slowly backed up the S.U.V. until a patrol car moved to block her. Then she edged forward and tried to reverse again.
Shouting at her to stop, two officers fired 13 bullets through the passenger-side window that passed over Ms. Dawes’s crouching boyfriend and struck her in the neck, chest and arms. As she collapsed, an officer continued yelling, commanding her boyfriend to reach through the shattered window to open the door so that his hand stayed visible.
“Step out! Get on your knees!” the officer, Christopher Hess, ordered. “Walk on your knees towards me!”
Then, body camera footage shows, he falsely announced into his radio, “They rammed the squad car twice.”
The officers later said they had feared the Dodge might run them down, but in a rare departure, skeptical prosecutors persuaded a grand jury to indict Officer Hess for aggravated assault.
At trial, his lawyers attacked Ms. Dawes’s character — she had heroin and methamphetamines in her system, the Dodge had been stolen before she bought it and a handgun was later found on the back floorboard. Christopher Hess, by then fired from the police force, was acquitted.
Many of the fatal vehicle stops reviewed by The Times unfolded in a similar way: Officers acted as if their lives were in constant peril, and killed drivers who failed to obey orders.
“The fear is excessive,” said Grant Fredericks, an authority on the forensic analysis of dash- and body-camera footage and a former officer who has examined scores of police shootings at vehicle stops. “The more fear officers feel, the more aggressive they become.”
But no degree of fright, he said, explained the approach of some officers, who often threatened or used deadly force in response to mere defiance.
“The reaction sometimes seems to be, ‘How dare you?” Mr. Fredericks said. “‘How dare you not do what you’re told to do?’”
Officers have killed more than 5,000 civilians since Sept. 30, 2016, according todata on police killings collected by The Washington Post and the research groups Mapping Police Violence and Fatal Encounters. Many died during felonies in progress, home invasions, domestic violence calls or shootouts in the streets. At least 1,500 were killed by officers pulling over suspected carjackers, during chases and at other types of vehicle stops.
From that data, The Times identified the more than 400 unarmed drivers and passengers who were not under pursuit for a violent crime. All of the deaths were reported by local news organizations, and a small number made nationalheadlines.
The Times examined video or audio from more than 180 of those encounters; interviewed dozens of chiefs, officers, trainers and prosecutors; submitted scores of open-records requests to obtain investigative files; and reviewed civil claims from more than 150 cases.
More than 75 of the drivers were suspected of car theft, either because of registration issues or stolen vehicle reports. Nearly 60 motorists were stopped for reckless driving, including many who turned out to be drunk or high. Others were pulled over for questioning about nonviolent offenses like shoplifting.
The police say there is no such thing as a routine stop; the driver’s behavior can turn it into a high-risk encounter, calling for drawn weapons and other measures. In The Times’s review, motorists were often resistant or evasive. Some had been hiding illegal drugs or weapons; others had had outstanding warrants for failing to pay a fine or missing a court date.
Among those killed, some became icons of the Black Lives Matter movement, including Daunte Wright (shot in Brooklyn Center, Minn., after being pulled over for expired registration tags); Rayshard Brooks (shot running from officers in a Wendy’s parking lot in Atlanta); and Jordan Edwards (a 15-year-old passenger shot leaving a house party in Balch Springs, Texas). But relatives of many others also questioned whether race played a role in their deaths.
In 2017, a white officer in Kent, Wash., told investigators that he had stopped a Honda Accord in part because its young Black occupants seemed afraid of him; one “had a scared look on his face.”
The officer pulled over the car for a canceled registration, and the driver, Giovonn Joseph-McDade, a 20-year-old community college student, sped off. A second officer shot him. Although prosecutors deemed the shooting justified, a civil court judge questioned whether the officers had faced any real threat, and the city of Kent this year paid the driver’s family $4.4 million to settle a wrongful-death suit.
“My son never would have been pulled over had he not been Black,” said his mother, Sonia Joseph. Police officials declined to comment.
Kalfani Ture, a criminologist at Mount St. Mary’s University in Maryland and a former Georgia police officer who is Black, said overstating the risks compounded racial bias. “Police think ‘vehicle stops are dangerous’ and ‘Black people are dangerous,’ and the combination is volatile,” he said.
The problem is especially acute at so-called pretextual stops, he argued, where officers seek out minor violations — expired registration, a dangling air freshener, tinted windows — to search a car they consider suspicious.
“We fish,” Dr. Ture said, recalling his past work as a policeman. “If I follow a car for five minutes, I can always find one or two moving violations.”
Officers in about four dozen of the deadly cases shot unarmed drivers because they had appeared to reach for something or held an object that the police took for a weapon — including several cellphones, two butane torch lighters, a cigarette, an electric toothbrush case, a bottle of antifreeze and a bag of sandwiches.
Body-camera footage showed an officer in Evansville, Ind., in 2019 pleading with a drunken motorist to stop reaching below his seat: “Whoa, whoa, whoa, let me see your hands!”
When the man didn’t comply, Officer Mario Reid shot him — then discovered that he had been grabbing a hammer, not a gun.
“That is the worst day of my life,” Officer Reid said in an interview.
But he defended meeting disobedience with deadly force. “If an officer is giving commands repeatedly and they are not being followed and the officer hesitates a bit — there are plenty of those officers who are no longer living or were seriously injured,” he said. “I understand the risks involved in doing what I do, and I have to get up every day and face that.”
In other cases, officers were carried away by the momentum of a chase. “Police are trained and driven to satisfy their curiosity,” said Chief Kenton Buckner of Syracuse. “Sometimes that gets the best of them — why is the car running from me when I stopped them for a taillight?”
On Christmas Day in 2018, Officer Marco Mercado in San Jose, Calif., heard a tip over police radio about a white car that may have been used in a drive-by shooting. He spotted a white Toyota Camry with a license plate that had been reported stolen. When the driver did not pull over, he suspected it was the car linked to the shooting, he later told investigators.
The fleeing Toyota crashed into a chain-link fence. Boxed in by patrol cars, the driver edged forward and back 11 times in an attempt to free the vehicle. “I’m going to shoot you if you don’t stop,” Officer Mercado threatened, according to body camera footage.
Moments later, as the Toyota bumped into a patrol car blocking its path, he and three other officers fired 37 shots at the driver, 24-year-old Jennifer Vasquez, killing her.
The officers told investigators that she was reaching for something, that she might have tried to run them down, that her eyes looked “scary,” according to a prosecutor’s report. But Officer Mercado also told investigators that he had decided “to draw a line in the sand” if Ms. Vasquez did not stop driving.
He later learned he had followed the wrong car. The police concluded that the stolen Toyota, which Ms. Vasquez had borrowed from a friend, had not been involved in the drive-by shooting.
“Can you prosecute a police officer for a killing at a vehicle stop?” asked Mr. Gill, the Salt Lake County prosecutor. “Theoretically, you can. But practically it becomes virtually impossible.”
The legal standard, he said, “overwhelmingly errs on the side of sheltering police misconduct.”
Although protests since the killing of George Floyd in Minneapolis last year appear to have spurred a modest uptick in criminal charges against officers, the police continue to claim special allowances for the use of force at vehicle stops.
In the more than 400 killings of unarmed drivers, The Times identified charges brought against officers in 32 cases. Among the five officers who were convicted, one got probation, another served seven months, one is awaiting sentencing and a fourth will soon have his appeal heard by the Texas Supreme Court.
The fifth conviction was for murdering George Floyd, who had been pulled from a car on suspicion of passing a fake $20 bill at a Minneapolis convenience store.
Nearly two dozen criminal cases are pending. The New Mexico officer who threatened to choke out a motorist is facing murder charges; the city of Las Cruces paid $6.5 million to settle a wrongful-death suit. That officer was also fired, one of more than two dozen who were dismissed or resigned.
A series of U.S. Supreme Court rulings have expanded the powers and protections of officers pulling over cars, including a 1997 decision holding that the police “must routinely exercise unquestioned command of the situation” because of the unpredictable dangers, and a 2014 decision allowing the police to shoot at moving cars.
“You watch the movies about bank robberies, you know, it happens all the time,” Justice Antonin Scalia said during oral arguments, asserting the practice was standard. “Are these movies unrealistic?”
Even in instances of officer-created jeopardy — the police putting their lives at risk and then citing that risk to justify killing a driver — half the federal appeals courts tell judges and juries to look only at the final moment when a trigger is pulled, ignoring officers’ earlier choices, said Cynthia Lee, a law professor at George Washington University. The results are “arbitrary and inconsistent,” she said.
Police advocates say that even if officers step into the path of a car or reach into a window, a tactical error should not cost them their right to self-defense.
“That doesn’t give somebody a green light to run them over and try to kill them,” said David Mastagni, a California lawyer for police officers and unions. “It doesn’t take away the officers’ justification to use deadly force.”
In more than 150 formal statements or public comments declining to bring charges, some prosecutors emphasized that the legal standard tied their hands, regardless of whether a killing was avoidable. Many others focused on the faults of the drivers, such as their criminal records or drug use.
After the Tennessee sheriff ordered deputies to shoot at a fleeing pickup to avoid damaging patrol cars, for example, the district attorney noted that the driver had taken methamphetamines and had veered all over the road to try to evade his pursuers. He was “a dangerous and unstable subject,” District Attorney Bryant Dunaway wrote.
In other cases, officers faced no charges even when evidence appeared to undermine their explanations.
A Georgia state trooper told investigators that, after forcing a Nissan Sentra with a broken taillight into a ditch, he had felt threatened by its engine “revving” and wheels “wrenching” toward him. A state inquiry found that the battery had been disconnected, the engine disabled and the wheels pointed away from the officer. But a grand jury this spring declined to indict the trooper, who is white, for killing Julian Lewis, a Black 60-year-old carpenter, with a bullet to the head. The possibility of racial bias “is hard to ignore,” said his son, Brook Bacon.
Claiming to fear for their lives “is a get-out-of-jail-free card for the police,” said Sheila Albers, a former middle school principal in Overland Park, Kan., whose 17-year-old son, John, was killed by the police.
After friends reported John as a suicide risk, officers found him backing the family minivan out of the driveway, and one fired more than a dozen shots into the vehicle. Prosecutors accepted the officer’s explanation that the boy had driven “in an extremely aggressive manner.”
But exhibits submitted in a wrongful-death lawsuit indicated that the minivan had been moving at about three miles per hour and that the officer was not in its path when he started shooting. The city paid the family $2.3 million to settle.
Some shootings were commended. In January 2019, Deputy Jason Hanratty of Pueblo County, Colo., stepped out of his car to confront the driver of a GMC Yukon with a broken taillight that had spun out on a lawn after a chase.
When the S.U.V. lurched toward the officer, he pushed off against the driver’s side hood with his hand and got out of the way, previously unreported body-cam footage shows.
But, Deputy Hanratty later told investigators, he nonetheless feared the S.U.V. would hit him, and he was frightened by the driver, Alicia Martinez, who was 20 and pregnant: She was “ghost-white” and “looking through me, like I was not even there.” He fired three shots through her side window as the car passed, seriously injuring her and killing her 18-year-old passenger, Amiliano Apodaca.
A year later, the sheriff awarded a medal of valor to the officer, who by then had made sergeant, praising his actions that night as “truly heroic.”
Arya Sundaram contributed reporting. Seamus Hughes contributed research."