The Cop Gets One Kill? (Law Review Article Idea)

At common law, every dog gets one bite.  That is, a dog owner won't be held liable the first time his dog bites someone.  After all, a dog owner can only be liable if he's on notice that his dog is a dangerous animal.  Absent the first bite, how was the owner to know?

Do police officers get one free killing before they can be held criminally liable for murder?  That's an interesting empirical question that the SF Weekly takes up in "Shoot First: Mehserle Likely Only Bay Area Cop Ever Charged With Murder for On-Duty Killing," which puts the BART shooting in context:

Just like Johannes Mehserle, we can't give you a straight answer -- but the former BART police officer appears to be the first Bay Area cop to ever find himself charged with murder following a job-related shooting.
Jim Chanin, a veteran Berkeley attorney who has prosecuted more than 20 police shooting incidents and is currently handling two in Oakland, couldn't recall a similar instance. The closest he could come was a policeman last year convicted of murder in Ohio -- but that man killed his pregnant girlfriend -- on his own time. Mike Rains, a Pleasant Hill defense attorney who has been representing police for more than 25 years, couldn't think of a case like this either.
Read the rest here.  Can any of you think of instances where police have been charged with murder?

I've worked on dozens of police misconduct cases, and never seen a case where a cop was criminally charged - even where the facts of the excessive-force case were gruesome, and even where the was beyond-a-reasonable-doubt evidence of guilt, and even when an innocent citizen died.

Whenever I read an especially violent excessive force Section 1983 opinion, I research the officers involved - to see whether they were criminally charged.  They are almost never charged with any crimes.

Any law students or law professors reading?  Because here's a paper idea for you: Pour over some excessive force opinions for "bad" facts.  Then follow-up with the named defendants.  Did the defendants who were held civilly liable face criminal sanctions?

What is this of scholarly importance?  In Hudson v. Michigan, Justice Antonin Scalia argued that the exclusionary rule was unnecessary because of "[a]nother development over the past half-century that deters civil-rights violations," namely, "the increasing professionalism of police forces, including a new emphasis on internal police discipline."

Is Justice Scalia's so-called "new police professionalism" claim empirically false?  My suspicion is that is most certainly is.  You should write an article about it.  Prove me wrong; or, even better, prove Justice Scalia wrong.

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