The Accountability Paradox

 Someone's got to go to prison, Ben.

FBI Special Agent in Charge Peter Sadusky (Harvey Keitel), National Treasure

Two days ago, a Denver grand jury indicted a Denver Police officer who was involved in a shooting in downtown Denver in July 2022. The incident involved three DPD officers, one guy with a gun and a lot of innocent bystanders. According to press accounts, the officers were trying to arrest the suspect subsequent to an altercation. In the process, the suspect acted in a way that produced a reasonable fear in the officer's mind that the suspect was going to use deadly force against them. All three officers fired, and the suspect was hit.

Seems fairly straightforward, right? It happens nearly every day in the US - cops attempt to arrest bad guy, bad guy produces some kind of weapon, cops defend themselves. What else do we need to know?

Except, in the Denver case, one of the officers' rounds missed the suspect and struck bystanders who are clearly visible. Bystanders who were doing nothing more sinister than being in downtown Denver in the wee hours, in an area that caters to wee hour socializing.

The body camera "footage" is revealing...in a manner of speaking. From the point of view of the officer, the suspect is looking at the other officers, not him. Clearly visible in the background are many, many individuals, a crowd packed so tightly that bullets fired in their direction cannot help but strike someone. Or, several someones. That's what happens. Several rounds go past the suspect and into the crowd, injuring several people, some seriously. By the grace of God no one was killed.

No one, the officer most assuredly, wished for that outcome. Injuring innocent people is the one nightmare every officer prays they never wake up to face in reality. Certainly, during his training (DPD's Academy and in-service training are excellent) he was taught one of the most basic rules of firearms safety - Be sure of your target and beyond. Based solely on the video evidence, one might reasonably conclude that the officer acted improperly by shooting at someone when a crowd of people are in close proximity.

While watching the video multiple times, I'm sitting in my home office, a cup of hot coffee beside me. One of my dogs is playing with a chew toy nearby. Music is playing from my iTunes app. I've had breakfast. More importantly, I know what I'm going to see. I know what happened, what became of the suspect and the other officers. What I'm witnessing took place months ago. I have no role to play, no immediate decision to make that might result in the deaths of my friends, or the deaths of innocent others. There is no shock, no fear, no focus.

No one is arguing that the officer shot the bystanders intentionally. The other officers have been exonerated of wrongdoing. The grand jury's felony indictment is based on the culpable mental state of "recklessness."

CRS 18-1-501 (8) “Recklessly”. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.

 Is that what happened? Did this officer consciously disregard a risk?

 

This is where my former lawyer side feels the obligation to point out a couple of things. First, a grand jury indictment is not a finding of guilt, only an opinion that probable cause exists. One must know a bit about how a grand jury operates, but suffice to say that a competent prosecutor presenting evidence to a grand jury has something of an advantage.

Over the course of the proceedings, the officer will have every opportunity to defend himself from the charges. He will be able to present expert testimony about what he reasonably perceived in the moment, not just what the camera captured to be calmly analyzed at others' leisure. A jury may, at some point, sit in a room and ask themselves if sending a young man to prison under the facts presented to them is just.

Held accountable? Is prison really what the average American thinks of when they ask that police officers who make mistakes be "held accountable?" Are there alternative disciplinary schemes to address official actions that fall short of what we expect of our police officers? Is this officer being held accountable for his actions, or being held out as a representative of a misguided idea that it will deter misconduct by others in the future? Or, is he the victim of an attempt to punish the allegedly unaddressed wrongs of the past?

Police misconduct is real, and should be appropriately addressed. I wrote a book about it (A Guardian's Promise). Holding individual officers accountable for their actions that violate the law, departmental policies and procedures - that is a valid expectation of the citizens who are ultimately the source of the moral authority to govern.

Police officers are human beings. If a slice of citizens demand action, and government acquiesces, in some misbegotten notion that society can attain perfection by punishing cops disproportionately for what may essentially be human failings, it won't be long before no one wants to take the risk of being a police officer.

And, to be clear. You are talking about men and women who willingly risk their lives for others. They understand being killed or injured is as close as the next call. They just don't want to spend the rest of their lives in prison for doing what they thought was necessary, and proper in the brief moment they had to decide.