Let us create vessels and sails adjusted to the heavenly ether, and there will be plenty of people unafraid of the empty wastes. In the meantime, we shall prepare, for the brave sky-travellers, maps of the celestial bodies. --Johannes Kepler, 1610

And Justice For All: Deadly Force In America

First Posted: Nov. 13, 2015, 12:12 a.m. CST
Last Updated: Nov. 13, 2015, 12:29 a.m. CST


According to Amnesty International, between 2001 and 2008, 351 people in the United States died after being shocked by police Tasers in the United States. A police watchdog organization and blog site for human rights for African Americans, Electronic Village has documented an additional 283 tazer-related deaths in the United States in 2009-2014. Collectively, that amounts to 634 documented tazer-related deaths in America as of 2014. Today, a disturbing video was released recording one of those deaths. Linwood Lambert, a Virginia man and a 49 year old African American male, died while in Police custody in 2013. Police reports indicate police were responding to a call about a disorderly subject. Video coverage is provided below:

Police arrive on scene and identify Lambert as the subject. Lambert was not armed and not accused of any crime. However, based on Lambert’s erratic behavior and statements he had made to police, officers at the scene determined to transport him to the emergency room for a mental health evaluation. The video footage released today shows the tragic escalation of that incident that could have been easily avoided, if officers took a simple precaution. According to the Lambert family’s attorney, Lambert was tazed over 20 times in thirty minutes by police the night he died. The attorney’s statement was quoted by USA Today. At the hospital parking lot Lambert was able to swivel his body by 90 degrees in his seat and raise his legs to kick out the window to the police vehicle and get his body with his hands cuffed out of the broken window and run towards the emergency room. At the door way of the emergency room, Lambert was tazed 20 times by three police officers. Lambert was then returned to the cruiser and charged with destruction of property and disorderly conduct and taken from the hospital and transported to the detention center. Minutes later, at the detention center, he was found unresponsive, and was declared dead in the vehicle. In the CNN video a gloved hand can be seen checking for a pulse. Lambert is one of 634 documented tazer-related deaths in America.

Despite these numbers, Police and government officers continue to maintain that tazers are a “non-lethal” use of force. When an individual is pepper sprayed, Police are required to have that individual checked out by medical personnel to insure there are no medical injuries. Since tazers are considered “non-lethal” no such requirement exists despite individual like Lambert who are tazed over and over again or by multiple officers, and as a result die.

The release of this video account of the 2013 incident and police related death resurrects the specter of Michael Brown and the Ferguson controversy surrounding civilian deaths at the hands of local law enforcement. Amnesty International reviewed US state laws in relation to police-civilian deaths, where they exist, governing the use of lethal force by law enforcement officials. Amnesty International found that all 50 states, and the District of Columbia (DC) fail to comply with international law and standards. Many of them do not even meet the less stringent standard set by US constitutional law. Some state laws currently allow for use of lethal force to "suppress opposition to an arrest"; to arrest someone for a "suspected felony"; to "suppress a riot or mutiny"; or for certain crimes such as burglary. A number of statutes allow officers to use lethal force to prevent an escape from a prison or jail. Others allow private citizens to use lethal force if they are carrying out law enforcement activities. Amnesty International findings are summed up below:

• All 50 states and Washington DC fail to comply with international law and standards on the use of lethal force by law enforcement officers; • Nine states and Washington DC currently have no laws on use of lethal force by law enforcement officers; and • Thirteen states have laws that do not even comply with the lower standards set by US constitutional law on use of lethal force by law enforcement officers. According to the International Covenant on Civil and Political Rights (ICCPR – 1966, Article 6.1), to which the United States is a signatory and state party to, summary execution is illegal, as it violates the right of the accused to a fair trial. Almost all constitutions, including the US Constitution, or legal systems based on common law have prohibited execution without the decision and sentence of a competent judge, and the UN's International Covenant on Civil and Political Rights (ICCPR) has declared the same: Every human being has the inherent right to life. This right shall be protected by law. No man shall be deprived of his life arbitrarily.

[The death] penalty can only be carried out pursuant to a final judgment rendered by a competent court. — International Covenant on Civil and Political Rights, Articles 6.1 and 6.2[1]

In practice; however, it is a different story. Michael Brown, Eric Garner, Walter Scott, as well as others demonstrate that extrajudicial killings or summary executions have been performed by police in the United States for some time. I was stationed in the south for four years, and lived there for another year after I was discharged. I am also a long term resident of Nevada, growing up in the wide open spaces of rural Nevada. From elementary school on to college, my social formation and education has taught me to call a spade a spade. These killings are by definition extrajudicial in nature and fit the international definition of a summary killing. In every case of a police shooting or death, the immediate defense by police is that the person killed had committed a crime or was a criminal. Michael Brown was accused of stealing several packages of cigarillos from a nearby convenience store and shoved the store clerk. Eric Gardner was approached by NYPD officers for suspicion of selling "loosies" (single cigarettes) from packs without tax stamps. Walter Lamar Scott was shot following a daytime traffic stop for a non-functioning brake light. These men, and others like them, were accused of a crime, and without benefit of a full and fair trial, and were summarily executed by a police officer. By definition, the police officer or officers at each of the incidents mentioned above, captured each individual, accused them, and executed them during a very short span of time. By definition, that is what a summary execution is. A police officer is not an “ordinary citizen,” but is an armed representative and agent of the state and is included under the definition of “Security Forces” noted in the ICCPR. There for a state or government cannot state a police officer was acting independently or without sanction, as a police officer acts as an agent of the government whether in uniform or not. There are substantial US precedents that support this notion that an officer acting under the color of his office acts on behalf of the government.

The United Nations Code of Conduct for Law Enforcement Officials states that the term “law enforcement official” includes “all officers of the law, whether appointed or elected, who exercises police powers, especially the powers of arrest or detention.” The Code further provides that “in countries where police powers are exercised by military authorities, whether in uniform or civilian, or by the security forces of the State, the definition of law enforcement officials will be understood to include the agents of these services.” In the case of Ferguson and other places where the National Guard was mobilized, those troops are considered to be “law enforcement officials” and bound by international law and human rights.

Brown, Lambert, Garner, and Scott were summarily executed without the benefit of due process or a fair and speedy trial. They were accused by police, captured and placed in custody, and summarily executed and shot at the scene. According to a Washington Post article this year there has been 630 fatal police shooting nationwide. That is in addition to the tazer deaths recorded above. The fatal shootings followed a wide range of violent crimes, including shootouts, stabbings, hostage situations, carjackings and assaults. 29 of them were black and unarmed. While the vast majority of victims were armed with weapons that posed a threat to officers, almost 1 in 6 were unarmed, or carried toys that only appeared deadly.

Often in media accounts the officer is depicted as a decorated public servant, and the deceased’s criminal history, mental illness, and drug addiction becomes public knowledge. Post mortem, Michael Brown’s criminal history in every detail was paraded for the media. When a 19 year old teen, a white male, was shot to death in South Carolina, at the time the Prosecutor announced no charges would be filed against the officer, the teen’s criminal history, including tattoos and email and text transcripts are released to the public depicting a ne’er-do-well and public menace. These public displays of the deceased’s “past bad acts” is not a conviction in a “competent court” as required by international law and the US Constitution. Nor is it admissible in a court of law.

Even pop culture and media feeds this idealization of the police officer. In shows like NCIS, Law and Order, CSI, even in the series Bones, the protagonist is often a rogue officer of sorts who is willing to “bend the rules” to get the “bad guy” at all cost. He or she is often unconstrained by the superfluous constraints of constitution law and legal procedure. The message is repeated over and over, the only people that assert their rights or “Lawyers up” are the “bad guys.” The implication of these modern repackaging of “Dirty Harry” is that the Fourth Amendment and other constitutional rights do not apply to “good citizens.” During my brief tenure as a Special Prosecutor for the Bureau of Indian Affairs and other Native American jurisdictions which are considered “federal enclaves” as well as my Criminal Justice education at both the college and university level there was a concept of “Community Oriented Policing,” and criminal justice students and law enforcement officers were taught to “de-escalate” confrontations with suspects or the public, and that use of force was the final option. This was in the 1990’s and early 2000.

The rising number of deaths in this year alone of unarmed individuals at the hands of police officers shows a disturbing trend toward the frequent use of deadly force as the first response in police interactions. In the case of Scott who fled from a minor traffic stop, instead of calling for additional officers to assist in the pursuit or pursuing the suspect himself, the police officer assumed a fixed firing stance, took aim and summarily executed Scott.

In the case of Eric Garner, video recordings of the incident shows the victim was passively standing in front of a store front when he was approached by multiple undercover officers for selling “loose cigarettes without a tax stamp.” For such a violation, Garner could have received a citation for the violation. When an officer issues a citation and you sign for it, it is not an admission of guilt; it informs you of the crime you are charged with and when to appear in court. Instead, officers continue to escalate the confrontation and multiple officers wrestle Garner to the ground. One officers is clearly seen as employing a prohibited “choke hold,” on Garner. Garner lost consciousness and died of asphyxiation. Brown, unarmed, was also shot fleeing from Police after stealing “cigarillos” from a convenience store. He was shot several times by police while he had his hands raised in surrender. In today’s released video, Lambert, was being transported to the Emergency Room for what officers’ reported as a “Mental health evaluation.” Initially Lambert was not under arrest. These stories seem to take on the dimensions of a Victor Hugo novel – of the severe imbalance between crime and punishment and the awful power that a state invests in a single individual.

I want to point out standard procedure across the country when placing cuffed individuals in the back of a cruiser is ensuring the individual is securely buckled in place with the safety belt. This usually includes a waist belt and a shoulder strap common to all vehicles, including police cruisers. This is to prevent the defendant from sliding around the back of the unit and to prevent exactly what happened that night. Lambert was clearly seen in the vehicle’s camera sliding around the back seat of the cruiser and the shoulder strap is seen unattached to Lambert. If Lambert was securely belted in with the waist belt and shoulder strap he would have been unable to physically swivel around in his seat to bring his legs up to kick out the window, and he definitely would not have been able to get his body out the broken window with his hands cuffed.

As a veteran who lives with mental illness, prior to my recovery and treatment, I have had encounters with the police in which I was arrested. I know first-hand that police officer routinely ensure that you are secured safely with a seat belt when placed in a police cruiser or “paddy wagon.” It is physically impossible to unbuckle a seat belt with your hands cuffed or to be able to swivel your body 90 degrees and raise your legs to kick out a window with a waist belt and shoulder strap in place. This is for the safety of the individual and the officer as well as to protect the department from property damage, liability and litigation.

Officers knew that Lambert was believed to be suffering from a mental health condition because of Lambert’s own behavior and statements. They called in to dispatch to advise dispatch that they were going to transport him to the emergency room. This is sufficient to determine the officers knew of the condition Lambert was in and the potential risk he posed, yet they did not take simple and appropriate actions to properly secure Lambert in the cruiser’s back seat. Because of that negligence, Lambert was able to break the window. It is a given that as a police officer one of your duties and obligations is to take reasonable action to secure and protect city property. Buckling a standard seat belt is arguably “reasonable,” given that it is the Police that routinely conduct public service announcements and demonstrations regarding wearing seatbelts while riding in a motor vehicle. In fact, Virginia, like the 49 other states, has a seatbelt law in place. Arguably, the officers, knowing they had an individual acting erratically and that he was possible suffering from a mental health condition were in essence negligent in ensuring the safety of the person in their custody and in protecting government property from unnecessary damage.

Lambert then ran towards the emergency room – he did not run across the parking lot and away from the hospital. He did not try to elude the officers. He was running towards the medical facility. Understandably, the officers may have had concerns about the safety of individual in the hospital, but this escalation of the situation stems from the root that the officers were negligent in ensuring Lambert was securely fastened in the backseat with the seat belt. Lambert would not have been able to break the window or get himself out of the window and run to the Emergency Room if this simple act of buckling a seat belt would have been accomplished by the officers at the time Lambert was placed in custody (being in police custody does not necessarily mean one is under arrest).

This seemingly insignificant oversight by police officers, may lay credible grounds to the Lambert Family’s wrongful death suit in that officers were negligent in taking necessary precautions to ensure Lambert was safe and secure.

Albuquerque, Baltimore, Ferguson, Stanton Island and Boston, Virginia. The list grows and grows; given the history of inability for local and state jurisdictions to objectively investigate these summary and extrajudicial executions, and federal government reluctance to intervene in what they see as a “state issue,” family members of the slain such as the Lambert Family should consider filing a suit in the international court under violations of ICCPR as almost every state in the US is in violation of International Laws regarding summary or extrajudicial executions, and that the federal government has no laws in place to ensure legal remedy for any of the victims’ violation of their right under the covenant. The United States is a signatory and party state to the ICCPR and is obliged under international law to legislate where necessary to give effect to the rights recognized in the ICCPR, and to provide an effective legal remedy for any violation of those rights. Despite the number of summary executions committed by law enforcement since 2001, the general ineffective and inadequate handling of the investigations by local and state authorities, the federal government has largely refrained from interfering or investigating these “wrongful deaths.”

Often in these cases, as was the case in Ferguson, Police shot and killed an unarmed teen, 19 year-old Zachary Hammond, in Seneca, South Carolina. Police chiefs are more likely to cover up such incidents rather than act in of transparency, public interest and justice. In the case of the Hammond shooting, the Police Chief sought to cover up the shooting by fabricating a story that was later disproved by the coroner’s report. According to Seneca Police Chief John Covington, Hammond drove toward Lt. Tiller in an attempt to murder him. Fearing for his life, Tiller shot Hammond twice at pointblank range killing him. After Police searched Hammond body and his vehicle, police discovered that the teenager had been unarmed and was not carrying any drugs. A witness who was in the vehicle with Hammond stated Hammond was placing his vehicle in park when he was shot to death.

This was not the first time. Another Seneca Officer shot down an unarmed man that same year, a month apart from Hammond’s death. Officer Ray Tensing gunned down Samuel DuBose and then lied in order to justify the killing. Officer Tensing attempted to cover up his crime by claiming that he was being dragged by DuBose’s car and nearly run over by the suspect. Tensing’s own body cam footage contradicted his story. Incidents such as these and Ferguson are no longer the “exception” to the rule, but is becoming a disturbing trend in American policing. In Ferguson, police initially claimed that the officer involved in the shooting was physically assaulted by Brown and that the officer was hospitalized for his injuries, and later video evidence also unraveled that cover up. Additionally, local coroners are often put under “political pressure” by local police chiefs and other officials, such as Police unions, to render a finding that supports the police account of the incident. Medical examiners or coroners offices are purportedly independent bodies apart from law enforcement; but the reality on the street is, that most coroners work very closely with police and their finding are crucial in whether a death is investigated or not. Michael Brown’s body was examined by three separate medical examiners: the county coroner’s office, a specialist brought in by the family, and the Department of Defense's Armed Forces Medical Examiner System, at the request of the US Department of Justice.

In the case of Lambert’s death, MSNBC reported that the autopsy concluded that Lambert had "less than 0.01 mg/L" of cocaine in his system. The coroner ruled that Lambert died from cocaine intoxication, and found it to be an accidental death. A MSNBC source, Lewis S. Nelson, a toxicologist and emergency specialist at NYU Langone medical center, said that was a relatively low amount of cocaine, but conceded that it could still account for an overdose. But Nelson sated that having a level of 5 mg/L or higher would be more consistent with death due to cocaine intoxication. The Lambert family and their attorney contest the the coroner’s findings saying that being tazed over 20 times was not accidental, and that Lambert was denied medical attention, and the cocaine in Lambert’s system was minimal. MSNBC confirmed that the three officers discharged their Tazers 20 times over a roughly 30-minute period, although they could not confirm how many of those actually hit Lambert.

In the case of Garner, the powerful New York Police Union criticized the coroner’s report that found that Garner’s death was homicide and the cause was the illegal choke hold. Despite the video footage showing the officer with his arm around Garner’s neck, Patrolmen's Benevolent Association President Patrick Lynch denied that NYPD officer Daniel Pantaleo used a chokehold while attempting to arrest Eric Garner on July 17. When Mayor de Blasio defended a medical examiner's ruling that Garner was killed by neck compressions caused by a police officer's apparent chokehold, the powerful police representing rank-and-file officers called the death report "political." Weeks later, at the funeral of a fellow Police Officer, several dozen of New York City police officers turned their backs on Mayor Bill de Blasio during his eulogy at the memorial services. This was defiance of their own Police Chief’s orders not to use the funeral for protest, and ignoring the fallen officer’s grieving wife and family. Large metropolitan agencies like NYPD and LAPD, often become closed communities or entities in and of themselves whose primary motivation is no longer justice or public safety but self-preservation. They often withhold incriminating evidence as was the case with the Police Chiefs at Seneca and Ferguson.

Finally the fact that two grand juries failed to indict the police officers in Ferguson, Missouri, and Staten Island, New York, demonstrates that the system is biased. In Ferguson, the prosecutor was selective in the evidence he allowed the grand jury to see. St. Louis County Prosecutor Bob McCulloch apologized for “inadvertently” omitting to release some of the evidence collected after the shooting of Michael Brown. The newly released evidence includes a transcript of an interview with Dorian Johnson, a friend of Brown’s, who was with the 18-year-old when he died. In the Hammond death, there was another teen present in the vehicle that witnessed the shooting, and later contradicted the official police version of the shooting. Despite this, the state prosecutor refused to file charges against the officer involved.

Civil rights lawyer Chase Madar recently pointed out in The Nation, it is virtually impossible to indict a police officer for homicide. Madar cites several cases from the 1980’s that gave Police broad discretion in using deadly force. Tennessee v. Garner (1985) and Graham v. Connor (1989) involved police violence against black males in the 1980s, and they helped create a system that gives fairly broad deference to the police officers' version of events and not the arrestees according to Mader. Both cases went to the US Supreme Court, and these two Supreme Court decisions solidified the precedent that makes it easy for police to avoid trials for killing people in the line of duty. Despite the constitutional protection of Fourth Amendment which gives individuals the right to be "secure in their persons, this two decisions gave broad discretion to police in the use and application of deadly force. Writing for the high court, Justice William Rehnquist went on to quote another excessive force case from 1973. "’Not every push or shove, even if it may later seem unnecessary, in the peace of a judge's chambers’ violates the Constitution.”

Mader in an interview goes a little further, “both the institutions and even the laws themselves heavily favor the police whenever a police commits an act of violence against any citizen, any civilian. Start with the simple fact that it is prosecutors who of course do the prosecuting, and prosecutors depend on a close relationship with the police. They see themselves as part of the same team as the police. And they are reluctant to rock that boat, to poison their relationships with the police, which is what will surely happen if they come down hard on an individual police officer.”

During the interview, Mader discusses the Missouri case in which State Prosecutor, Bob McCulloch, whose father was a police officer, allowed the lengthy testimony of the potential defendant, Officer Darren Wilson, is virtually unprecedented US legal history. Mader asserts that McCulloch appeared to be more concerned with protecting the Prosecutor-Police relationship, than seeking justice. As Mader stated earlier, prosecutors quantify success and productivity in the number of convictions, and Police play a big part in attaining those numbers. Whether for the purposes of promotion or elected office, prosecutors rely heavily on those numbers.

In closing, I return to the Amnesty International report that I started with. The report found all 50 states, and the District of Columbia (DC) failed to comply with international law and standards, and that many of them do not even meet the less stringent standard set by US constitutional law opens the door to a claim before the international court. Given the high court’s decisions and that the federal government has investigated a number of these killings negates any claim by the Obama administration or the Federal Government of ignorance of such violations to international law and human rights.

Sources:

1. http://electronicvillage.blogspot.com/2009/05/taser-related-deaths-in-united-states.html 2. https://www.washingtonpost.com/national/fatal-police-shootings-in-2015-approaching-400-nationwide/2015/05/30/d322256a-058e-11e5-a428-c984eb077d4e_story.html 3. https://www.icrc.org/eng/resources/documents/misc/57jq3h.htm 4. Code of Conduct for Law Enforcement Officials, adopted by General Assembly Resolution 34/169 of 17 December 1979. 5. http://www.nationofchange.org/2015/08/13/justice-department-launches-investigation-into-police-killing-teenager/ 6. http://www.nbcnewyork.com/news/local/Eric-Garner-Chokehold-PBA-Police-Union-Medical-Examiner-Report-270044331.html 7. http://www.motherjones.com/politics/2014/12/heres-dods-report-michael-browns-autopsy 8. http://www.businessinsider.com/supreme-court-precedent-on-police-force-2014-12 9. http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=12719



This article was written by Joaquin Rafael Roces. Joaquin is a Marine Corps Veteran, is active in his faith community, and has served as a Eucharistic Minister and Religious Education Instructor for over 15 years. He is a member of the Knights of Columbus, and recently became involved in the parish’s Youth Ministry. He has a dual diagnosis of Post Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder and has been in recovery for three years. In 2015 Joaquin was trained by the National Alliance for Mental Illness to be an In Our Own Voice Presenter. Joaquin travels throughout Northern Nevada working with NAMI to change attitudes, assumptions and stereotypes by describing the reality of living with mental illness and sharing his recovery story. Through the In Our Own Voice presentations, people with lived experience with mental illness share their powerful personal stories.

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