Death by
cop
Colorado
police shoot civilians - lots of them.
So many, in fact, that this year the state may surpass the Texas
death chamber in its number of executions.
- - - - - - - - - - - -
by Eric J. Ross
The Execution Machine in Texas stalled temporarily this month while
Americans debated whether killing convicted murderer Napolean
Beasley would be appropriate in light of the fact he was only 17 at
the time of the murder. That leaves the running total of 11
convicted Texas murderers executed this year. Six more are scheduled
to die before the end of 2001, barring judicial stays, pardons or
commutations. This slowdown may be the lucky break that the Colorado
executioners seem to be looking for in their quest to surpass Texas
and earn the state a new title: Execution State.
Say what? Some of the more erudite readers might ask how
that can be, considering the fact that Colorado has officially put
to death only one person in the last 30 years through legal
channels-Gary Davis in 1997.
The state of Texas, meanwhile, has become best known for
its desire to convict and kill violent murderers. But in Texas,
unlike Colorado, the Judicial system actually bothers with all the
trouble and expense of what lawyers and legal scholars refer to as
"due process"-probable cause, warrants signed by judges, lawful
arrest, reasonable bail, free legal defense counsel, preliminary
hearings, motions, pleadings, trials by a jury of peers,
comprehensive pre-sentencing reports, learned Judges presiding over
it all, post conviction sentences within legislatively approved
guidelines, the requisite appeals of conviction etc., etc., and etc.
These are the little checks and balances that our justice system
tries to place as obstacles and deterrents to one of the greatest
tragedies that our country tolerates: the obscenity of wrongfully
convicting an innocent person.
The requirements of due process aren't always enough. As
proven in Illinois in recent years-where a pro-death penalty
governor ordered executions to stop-states have been incarcerating
far too many innocent and wrongfully convicted people. Since the
advent of DNA identification in law enforcement-a practice
instituted in the late 1980s-hundreds of innocent people serving
hard time have been exonerated and set free. The National Institute
of Justice reported that as many as 10 percent of the inmates in the
United States may be factually innocent of the crimes for which they
were convicted. The Innocence Project at Cardozo School of Law has
helped reverse the convictions of dozens of innocent people who were
wrongfully convicted; many of these people have been locked in
prison cells for decades of their lives. These innocent people
cannot get the huge portions of their stolen lives back, but at
least they are free and still alive.
In Colorado, a growing number of suspects never see a
courtroom or a jail. Events of this summer have made it painfully
clear that some Colorado cops shoot first and ask questions later;
and possibly without consequences for the policemen responsible. The
suspects get no representation, no trial, no appeal, no reprieve, no
chance of reversal.
While Texas has executed 11 people lawfully this year,
cops in Colorado have killed 11 on the streets.
Wild West justice
It's not as if Colorado citizens and politicians haven't tried to
use a system more similar to the process in Texas. It's just that
they've failed. When the U.S. Supreme Court revalidated the Death
Penalty in 1976, Colorado politicians quickly began thirsting for
its application. In 1984 the Colorado Legislature revised the law to
allow executions in capital murder cases.
The Colorado death chamber was dusted off after a
nine-year hiatus, and people waited eagerly for its use. But a funny
thing happened on the way: Due process, in the form of juries. In
Colorado, juries not only decided the guilt or innocence of the
defendant, but also decided whether those they convicted should be
killed, or imprisoned for life. Juries showed an overwhelming
reluctance to execute, even after sitting through trials involving
gory evidence and listening to the agony of grieving survivors. This
enraged the politicians and frustrated the would-be executioners. So
in 1996 the Colorado Legislature, strongly supported by the Colorado
District Attorneys, decided to take the decision away from the 12
jurors who witnessed the trial and stack the deck in favor of the
state.
They concocted a new method of sentencing, something they
were sure would result in more deaths. The plan was to place the
life or death decision solely in the hands of three-judge panels.
Surely, hand-picked dispassionate judges would be more willing to
fry convicted murderers than timid jurors who had come face-to-face
daily-sometimes for weeks on end during a trial-with the people they
were supposed to have killed.
So in 1995 the three-judge tribunal was established by
the legislature to decide who gets death after being convicted of
capital murder. It was yet another unexpected setback for those who
would make Colorado more like Texas. Lo and behold, the wise and
learned judges just weren't concluding that many of the capital
cases before them that were deserving of death. In fact, they were
coming to much the same conclusions that the old juries were. In
response, the legislature threatened again to alter the system and
turn over the sentencing decision in each capital conviction to just
one judge. So far, the one-judge proposals-sure to result in more
legal executions-have failed.
But those who favor the swift execution of convicts need
not despair entirely. With none of the buildup, none of the drama,
none of the average 10 years of due process, these people are seeing
suspects-not convicts-get shot routinely throughout the state. In
the past 12 months, mostly this summer, Colorado cops have shot 21
people, 11 of whom are dead. The nature of the alleged crimes is
diverse, ranging from serious assaults to shoplifting to sitting
peacefully in one's own home, watching TV while the emergency 911
system misfires.
Of the hundreds of thousands of federal, state and local
laws on the books in the United States, only two-premeditated murder
and treason-can result in the option of capital punishment upon
conviction.
Although capital punishment requires a seemingly endless
cycle of checks, balances and due process, executions by cops
require nothing but a feeling on the part of the gun-toting officer.
Under state law, one needs only to interact with a cop, and that cop
needs only to "fear" for his life in order to be authorized to shoot
to kill. Whether he's in "fear," and therefore justified to shoot,
is entirely up to him. Internal investigations of police shootings
come down to this:
Interrogator: "Did you fear for your life?"
Cop: "Yes, lieutenant, I thought he might run over me."
Cars have been declared "deadly weapons" without much, if
any, scrutiny from the media or the public. As a weapon it makes a
rather poor and cumbersome choice if one is intent on harming or
killing a specific person. Visualize an old western-style showdown.
You, in your car, are a mere 20 paces from your opponent. He has a
loaded gun. Ready, set, go! Bet heavily on the gun.
But being anywhere in a car can give the cops authority
to kill you, if they happen to be anywhere near or around your car.
It doesn't matter what "crime" you may be suspected of at this
point. It could be anything or no crime at all. Scare a cop, even by
accident, and he can kill you with near absolute impunity.
Trained to kill
Cops always shoot to kill. Gabe Suarez, an LA cop and author of The
Tactical Pistol: Advanced Gunfighting Concepts and Techniques,
believes that it's unwise and unethical for an officer to shoot to
disable a suspect. His book argues that police should only shoot
when they feel their lives, or the lives of civilians, are
imminently at risk. And when shooting a would-be killer, who's going
to murder before he can be subdued, no risk should be taken. If
injured, the suspect will only be angry and is likely to take a cop
or civilian with him to the grave. Injured, Suarez argues, a
dangerous suspect will do anything to kill. So he, and others who
teach cops how to shoot, try to instill a two-to-the-chest, one
to-the-head model. Suarez recommends that police plug a suspect
twice in the chest, then aim the gun directly at the suspect's head.
If the head is in the sights, pull the trigger. If it's not, then
the two to the chest put him down.
When someone shot by a cop doesn't die, it is merely a
reflection of the ballistic incompetence of the officer or just a
freak stroke of luck, and not because the cop intended to spare a
life.
How threatening must one be to receive two bullets to the
heart?
Again, it comes down to how an officer feels. More
technically, however, the officer is on less shaky ground if the
suspect is within 21 feet of the cop. It's not state law, but an
arbitrary guideline established by Denver's police trainers. They
have established an imaginary 21-foot circle around each cop. They
have said publicly that a suspect moving toward an officer with a
weapon available, even a tire iron or screwdriver-or any object that
can be construed as a weapon-must be dropped with lethal force.
By following the arbitrary mechanical dogma of the
training manual, police are immune when they use lethal force.
The issue, then is one of morality, not legality. Simply
because a cop "may" legally kill a suspect, the question becomes:
"Must" he kill the suspect? That semantic nuance, and the wisdom and
discretion to choose between them, is what many say separates the
truly corageous cop from the trigger-happy robocop. However, the
moral fortitude of some cops provides little protection for Colorado
citizens.
Under Colorado law, the legal standard for self-defense
is exactly the same for cops as it is for citizens. In order to use
deadly force against an assailant legally, one must be in "imminent
danger" of being killed or of receiving great bodily injury. While
police have certain special powers of arrest and apprehension, the
legal requirement for justifiably killing another person in
self-defense is exactly the same as it is for any other citizen. In
practice, it rarely happens that way. The legal standard that must
be met before anyone can kill another is high and should be so in a
civilized society. Some disagree with this concept and expect that
the standard should be even higher for professionally-trained,
full-time law enforcers. But the police have the same rights to
self-defense as you or I do.
So when you read reports of justifiable lethal force and
wonder about their legitimacy, ask yourself: Would the actions
appear reasonable if an average citizen, standing in the cop's
shoes, did the exact same thing?
The body count
The number of killings by cops in Colorado, or anywhere in the
United States, is not an easy statistic to obtain. It's actually a
statistical black hole, one resulting from blind trust in law
enforcement coupled with the lack of required accountability-an
historical recipe for trouble.
One reason given for the absence of these
statistics-unlike other crime data, which is copious-is that
law-enforcement officialdom doesn't consider the shooting of a
suspect to be a crime. Never. Not ever, based on the wording of a
U.S. Justice Department-Bureau of Justice Statistics report.
When it comes to lethal force by police against citizens,
the city of Denver ranks as one of the deadliest cities, based on
extensive research by the Washington Post.
Nationwide, Denver ranked in the top 10 in measurements
of fatal shootings per 100,000 residents; in the top 10 in fatal
shootings per 1,000 police officers; in the top 10 in fatal
shootings per 1,000 arrests for violent crimes; in the top 10 in
fatal shootings per 100 murders; and ranked second in fatal
shootings per 10,000 violent crimes.
But statewide, no single agency keeps or collates such
data. Boulder Weekly's calls to the Colorado Bureau of
Investigation, the State Attorney General, and the Governor's office
were met with "we don't keep those statistics." The Colorado Bureau
of Investigation responded with: "we have no idea" how many times
Colorado cops shot or killed someone this year. The law does not
mandate that such important data be compiled or kept, much less
analyzed. One has to rely heavily on news media coverage throughout
the state, trusting that all incidents of lethal force are known to
reporters and subsequently published.
According to a story titled "When Cops Shoot, Who's
Counting?" in the New York Times, this absence of meaningful
statistics is a nationwide problem. In the April 29 story, reporter
Fox Butterfield wrote:
"Despite widespread public interest and a provision in
the 1994 Crime Control Act requiring the Attorney General to collect
the data and publish an annual report on the statistics, police
shootings and use of non-deadly force continue to be piecemeal
products of spotty collection, and are dependent on the (voluntary)
cooperation of local police departments. No comprehensive accounting
of all the nation's 17,000 police departments exists."
In the 1980s, the International Chiefs of Police, a
police organization, tried to collect such information. But members
of the organization didn't like what they saw.
"The figures were very embarrassing to a lot of police
departments" said James Fyfe, a professor of criminal justice at
Temple University and a former New York cop, in the Times.
In Colorado, no law requires that shootings or killings
by police be investigated by outside agencies, much less analyzed.
Some metro agencies use outside "shoot teams" to investigate when
one of their own shoots or kills a citizen. These investigative
teams are usually comprised of law enforcement members from the
surrounding jurisdictions.
At the whim of the agency involved in each shooting, the
use of outside investigators is completely optional and
discretionary. Many times they simply investigate themselves. If
they do call a shoot team, the investigators do not have authority
or jurisdictional control, says Linda Holloway, a CBI shoot team
investigator. The team or its findings can be dismissed or denied
access, Holloway says, at the whim of the agency involved in a
shooting.
A few departments in Colorado, and throughout the
country, voluntarily send their data on shootings by cops to the
FBI. The statistics end up in an annual report by the US department
of Justice crime statistics division that's labeled "Justifiable
Homicide of Felons by Police." In other words, all reported
shootings are "justifiable," and all those shot are felons. The
federal government has official knowledge of exactly zero instances
in which a police officer unlawfully shot a suspect.
The report explains:
"When a police officer deliberately kills someone, a
determination is made as to whether the homicide was justified to
prevent the imminent death or serious bodily injury to the officer
or another person. If an investigation determines that the homicide
did occur in the line of duty and that circumstances did warrant
lethal force, a record of a justifiable homicide is voluntarily sent
by the officer's agency to the FBI in Washington. Each record of
justifiable homicide is then entered into the database."
This leaves the reader of this report with a few
questions, such as: What happened to the non-justifiable or
questionable killings of "felons" by police? What happened to the
non-justifiable or questionable killing of misdemeanor offenders by
police? What happened to the non-justifiable or questionable
killings of traffic offenders by police? What happened to the
murders of civilians by police?
Answer: The victor gets to write the history books.
The introduction to the report seems to make mockery of
the data, stating:
"In this report, killings by police are referred to as
'justifiable homicides,' and the persons that police kill are
referred to as 'felons.' These terms reflect the view of the police
agencies that provide the data used in this report."
Reread that. Let it sink in. Why are all killings by
police justified? Because the police say so in every single case
they ever report. Why are all those killed called "felons?" Because
the police shot them. The police say they're felons, and they don't
need a prosecutor, a judge and a jury to concur.
The "felon" description of all reported suspects who get
killed was dubbed "deeply offensive and legally incorrect" by Samuel
Walker, a professor of criminal justice at the University of
Nebraska. Even the Justice Department itself was so embarrassed,
reports the Times, that it did not send out its usual promotional
material trumpeting the report.
In a novel mission to fill this peculiar informational
void in the Information Age, a non-profit Internet site and database
has been launched to begin a national count. LethalForce.org and
DeadlyForce.org will act as national central repositories for all
instances of police lethal force in the U.S. The repositories will
rely on data sent in by citizens. News media and public watchdog
groups will also be invited to submit records of every instance of
which they are aware.
Legally, and for all practical purposes, it appears to be
obvious and clear that police can shoot suspects, almost at will,
without recourse-especially in Colorado. But in this country, at
least, citizens are free to keep count. The People will keep count,
and will continue to count until each and every instance of lethal
force by police is recorded. At the end of all the counting, perhaps
the analysis will show no bias or raise no further questions.
Perhaps it will turn out that every incident of force by police in
the U.S. is indeed "justifiable homicide," just like the Department
of Justice claims. Wouldn't that be comforting?
The following provides a look at some of the 21
executions and failed executions that have taken place in Colorado
in only the past 12 months.
Jerry Norris: suspected of watching TV, July 26, two
shots
David Grodney: suspected of shoplifting July 23, eight shots
Joshua Torres: suspected of speeding July 19, three shots
*Hakijah Ogobonna: suspected of assault July 18, one shot
Christopher Cali: suspected of being suicidal July 17, two shots
Christopher Olguin: suspected of assault July 7, one shot
*Richard Dutson Jr: suspected of purse snatching July 8, 42 shots
Michael Jackson: suspected of assault May 8, one shot
Larry Olsen: April 21, aggravated assault, four shots
Brandon Meraz: suspected of traffic violations April 14, five
*Ascary Macias: suspected of car theft April 14, one shot
*Joseph Daniel Martinez: suspected of aggravated assault April 8,
two shots
*Jamie McIlrath: suspected of acting erratically Mar 14, one shot
*David Mercado: suspected of bank robbery Feb. 28, one shot
*Brian Pannebaker: suspected of being suicidal Feb. 8, two shots
*Abran Lovato: suspected of running Feb. 3, three shots
Matthew Arroyo: suspected of car theft Jan. 18 2001, one shot
*Bruce Graham: suspected of lighting a fire Oct. 19 2000, four shots
Bryant Wynn: suspected of robbery Oct. 18 2000, one shot
*Eric Vantslot: suspected of violating restraining order Aug. 29
2000, two shots
*Mark Anthony Russell Jr.: suspected of disturbance Aug. 16 2000,
one shot
* Killed
