SUNDAY, MARCH 13, 2016 A7

Police officers need more latitude By the numbers

Over six months, the Tribune-
Review built a database from

than ordinary citizens, attorney says

CIVIL RIGHTS FROM A6
The standard is high and challeng-
ing, said Alan Vinegrad, a former
federal prosecutor from the Eastern
District of New York who oversaw
criminal civil rights cases.
Its got to be a willful deprivation
of rights, meaning the police officer
intended and wanted to either kill or
injure the person, said Vinegrad,
now a partner at the law firm of Cov-
ington & Burling LLP in New York.
Not just it was reckless or negligent
or anything like that.
U.S. attorneys nationwide generally
have the authority to decline refer-
rals on their own. In civil rights cases
when an officer has killed someone,
when the case has been tried in a local
court or has gained national notoriety,
U.S. attorneys must coordinate with
the assistant attorney general for civil
rights in Washington, who has the
final decision.
During the Obama administration,
federal prosecutors have declined
referrals for civil rights prosecution
of officers 93 percent of the time.
The willful standard is too high,
former Attorney General Eric Holder
said last year. He talked about recom-
mending changes before leaving office
but did not.
Now in private practice at Coving-
ton & Burlings Washington office,
Holder declined a Trib request for an
interview.
Specific intent
Even when investigators determine
a police officer was not justified in
shooting someone, federal prosecu-
tors must prove the officers intent
under the Supreme Courts ruling.
Seattle police Officer Ian Birk shot
and killed Native American woodcarver
John T. Williams after seeing him walk
through a crosswalk, looking down
at his hands. Williams held a piece of
wood in his left hand as he worked at it
with a knife in his right, dashcam video
shows.
Birk stopped at a red light. He pulled
his patrol car to the curb, flipped on its
emergency lights and jumped out with
his service weapon in his right hand
as he walked after Williams.
Hey! Birk shouted, without identi-
fying himself as a police officer. Hey!
Hey! Put the knife down! He repeated
the command two more times quickly.
Within ten seconds of first calling
out, Birk opened fire, hitting Wil-
Seattle police Officer Ian Birk fatally shot John T. Williams, a Native American
woodcarver, four times in 2010 after seeing him crossing a street holding a piece
of wood in his left hand and a knife in his right. A Seattle Firearms Review Board
determined the shooting was unjustified, but federal prosecutors and the King
County, Wash., prosecutor declined to charge Birk with a crime. Birk later resigned.
liams four times as he collapsed to the
sidewalk, according to a Seattle police
firearms review board memorandum.
The board determined the shooting
was unjustified and outside of policy,
tactics and training. Birk lacked
probable cause to believe Williams
posed a threat, he had other reason-
able alternatives, and would have
done better to let Williams get away
than to kill him, the board ruled.
Yet when federal prosecutors
investigated, they found insufficient
evidence to prove that Birk acted
willfully and with the deliberate and
specific intent to do something the
law forbids.
Prosecutors declined to charge him
with a crime.
Birk resigned from the police force.
There was enough conflict between
the civilian witnesses as to what was
actually happening on the street cor-
ner that there was simply no way that
a prosecution was going to be success-
ful on a beyond-a-reasonable-doubt
standard, Ted Buck, Birks lawyer,
told the Trib.
Police officers need more latitude
than ordinary citizens because of the
jobs they are asked to do, he added.
Theyre asked to respond to situ-
ations that are rapidly evolving, that
require split-second decision mak-
ing, Buck said.
If we dont give them protections
along the lines of a showing of malice
or something like that, then who in
their right mind would go out there
SEATTLE POLICE DEPARTMENT
and do the job?
Beyond proving intent, prosecutors
have practical reasons for not charg-
ing officers, legal experts said.
Theres first of all the general
reluctance on the part of prosecutors
to go after people in law enforcement
because they consider themselves
all working on the same team, said
Tim Lynch, director of the Project on
Criminal Justice at Cato Institute, a
think-tank in Washington that advo-
cates for smaller government.
Prosecutors also know that juries
tend to look favorably on police
officers and might be reluctant to
convict, Futterman, at the University
of Chicago, said.
Even with video or other strong
evidence, the defense can argue the
officer believed the dead person was
armed or was a threat, or that the of-
ficer had only a split-second to make a
decision. Actions based on fear, panic,
misperception or even poor judgment
do not equate to willful conduct, the
Justice Department commonly says in
declining to charge officers.
First of a series. Coming Monday:
Civil rights cases involving law
enforcement in Western Pennsylvania
and the impact of video.
Brian Bowling is a Tribune-Review staff writer. Reach
him at 412-325-4301 or bbowling@tribweb.com.
Andrew Conte is a member of the Tribune-Review
investigations team. Reach him at 412-320-7835 or
andrewconte@tribweb.com.
nearly 3 million records drawn
from the Department of Justices
National Caseload Data.
The Trib analyzed criminal com-
plaints by the calendar year when
they were filed. Any decisions to
decline or prosecute are listed un-
der the calendar year the file was
opened. The newspaper chose to
trace prosecution decisions from
2015 back to 1995 a year after
passage of the Violent Crime
Control and Law Enforcement
Act, the most-sweeping crime bill
in the nations history.
On civil rights matters involving
law enforcement officers, the Trib
found:
No matter how many refer-
rals prosecutors received, they
consistently declined more than
90 percent of them.
Overall, prosecutors received
referrals involving 21,364 law
enforcement officers. They won
convictions against 631 of them
over 21 years.
Prosecutors in 11 federal
districts received a total of 240
referrals yet never charged a
single officer from 1995-2015.
The districts are: Alaska, Colo-
rado, Central Illinois, Southern
Iowa, Maine, Western Michigan,
New Jersey, North Dakota, Ver-
mont, Eastern Washington and
Wyoming.
Twelve federal districts
received a total of 671 referrals
over 21 years, but prosecuted one
officer each in Southern Alabama,
Southern Georgia, Northern
Indiana, Minnesota, Nebraska,
Nevada, Northern Oklahoma,
Oregon, South Dakota, Western
Virginia, Western Washington
and Western Wisconsin districts.
Prosecutors in Northern
Mississippi brought 24 civil rights
cases against officers, the most
of any district, winning 20, or 83
percent of them. Western Ten-
nessee had the second-highest
total with 22 cases, successfully
prosecuting 20 (91 percent).
Eighteen districts accounted
for 270 civil rights cases or more
than half of the total 530 cases
brought against officers between
1995 and 2015. In ranked order
they are: Northern Mississippi,
Western Tennessee, Northern
Georgia, Southern Mississippi,
Central California, Maryland, East-
ern Arkansas, Connecticut, New
Mexico, Middle Florida, Southern
California, Eastern Tennessee,
Western Texas, Western Louisi-
ana, Eastern Louisiana, Southern
Florida, Eastern Michigan and
Eastern Texas. Some cases in-
volve more than one officer as a
defendant.

ISIS uses low-grade mustard gas

ISIS FROM A1
American and Iraqi officials
said U.S. special forces cap-
tured the head of the ISIS unit
trying to develop chemical
weapons in a raid last month
in northern Iraq.
The U.S.-led coalition said
the chemicals ISIS has used in-
clude chlorine and a low-grade
sulfur mustard, which is not
very potent. Its a legitimate
threat. Its not a high threat.
Were not, frankly, losing too
much sleep over it, Army Col.
Steve Warren said.
Experts say the extremist
group appears incapable of
launching a large-scale chemi-
cal weapons attack, which re-
quires not only expertise, but
also proper equipment, ma-
terials and a supply-chain to
produce enough of the chemi-
cal agent to pose a significant
threat.
The coalition began target-
ing ISIS chemical weapons
AP
Fatima Samir, 3, was killed in
a chemical attack in Taza,
10 miles south of Kirkuk.
infrastructure with airstrikes
and special operations raids
two months ago, Iraqi intelli-
gence officials and a Western
security official said.
Airstrikes are targeting lab-
oratories and equipment, and
further special forces raids
targeting chemical weapons
experts are planned, the of-
ficials said. They spoke on
condition of anonymity.
ISIS is believed to have set
up a special unit for chemical
weapons research made up of
Iraqi scientists who worked
on weapons programs under
Saddam Hussein.
The group is believed to
have created limited amounts
of mustard gas. Tests con-
firmed mustard gas was used
in a town in Syria when ISIS
was launching attacks there
in August. There have been
unverified reports of ISIS us-
ing chemical agents on battle-
fields in Syria and Iraq.
Separately, attacks across
Baghdad on Saturday killed
13 and wounded 27. The at-
tacks were mostly carried out
with homemade bombs placed
along roads in the capitals
south and east.

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