SECTION 4-FINDINGS OF FACT

1. Pretextual Traffic Stops Are A Common Precursor To Police Killings And Uses Of Excessive Force Against People Of African Descent

2. “Broken Windows” Or “Order Maintenance” Policing Trgigers Deadly Police Violence Against People Of African Descent

3. Police Killings Of People Of African Descent Systematically Follow Violations Of Their Fourth Amendment Rights

4. Police Routinely Use Excessive And Lethal Restraints Against People Of African Descent

5. Lethal Police Violence Against People Of African Descent Is Exacerbated By Medical Apartheid And Police Failure To Provide Medical Attention

6. Lethal Police Violence Against People Of African Descent Experiencing Mental Health Crises is Systematic

7, Police Systematically Use Excessive Force Against Cis-and Transgender Black Women, Girls and Femmes

8. Systemic Racist Police Violence Kills and Traumatizes Black Children and Youth

9. Racist Police Violence Traumatizes And Devastates Families And Communities

10. Black Immigrants Are Particularly Vulnerable To Systemic Racist Police Violence And Police Killings

11. Legal Actors Are Complicit In Police Violence And Killings Of Black People Through Qualified Immunity And Other Forms of Systemic Impunity

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1. PRETEXTUAL TRAFFIC STOPS ARE A COMMON PRECURSOR TO POLICE KILLINGS AND USES OF EXCESSIVE FORCE AGAINST PEOPLE OF AFRICAN DESCENT 

“…systematic racism in America is a huge burden and obstacle for many who yearn for the American dream.”—Abdul Jaiteh, attorney for the family of Momodou Lamin Sisay^[1]

“Ramarley was in his home. . . it’s a sacred place, and he was supposed to be safe. But that never happened. His life was snuffed right in front of his, his sibling’s face, his grandmother. And this officer was allowed to resign without any consequence.” —Constance Malcolm, mother of Ramarley Graham ^[2] 

I’m also here to stand in the gap for mothers who have gone through the unimaginable pain of burying a child. . . My message today echoes Miss Fannie Lou Hamer. I’m sick and tired of being sick and tired. We must stop talking about police brutality and systemic injustice and move swiftly with a new purpose and a real solid plan of action. We must change the laws.”

—Lezley McSpadden, mother of Michael Brown^[3]

“I believe it is clear that there are two police forces in Baltimore, one for its Black residents and one for its white residents.” —Christopher Lawrence, law student^[4]

169. The Commissioners find that pretextual traffic stops are a common precursor to police killings and uses of excessive force against people of African descent. Indeed, 6 of the 44 cases heard by the Commissioners involved police use of deadly force during a traffic stop. This figure is consistent with national trends. According to a study conducted by National Public Radio, more than a quarter of the police killings in 2018 occurred during traffic stops.^[5] The use of force against civilians, however, is not commensurate with the level of risk confronted by law enforcement during stops. According to a study by legal scholar Jordan Woods, “the rate for a felonious killing of an officer during a routine traffic stop was only 1 in every 6.5 million stops.”^[6] Conversely, a report by ProPublica found that Black men were killed at a rate of 31.17 per every one million stops.^[7]

 

Use of Force against Unarmed People of African Descent during Traffic and Investigatory Stops is Driven by Racial Stereotypes and Racial Biases

 

170. The Commissioners find that use of force against unarmed people of African descent during traffic and investigatory stops is driven by racial stereotypes and racial biases. Under U.S. law, police are given the extraordinary power to stop individuals, question them, and search their persons or belongings if police have reasonable suspicion that a crime is being or is about to be committed by the individual.^[8] Existing law grants police a wide degree of latitude and discretion in deciding whom to stop for an offense like speeding and whom to search for weapons or other contraband. Such broad discretion enables racial bias, both implicit and explicit, to shape how police use their latitude to make stops, how thoroughly to investigate potential crimes, and how much force to use during an encounter with a civilian. Indeed, studies have found that Blackness is associated with perceived criminality and violence.^[9] As a result, whites are more likely to perceive Black people as armed when presented with images of Black people holding a harmless item.^[10] Black men’s behavior is more likely to be interpreted as aggressive or hostile^[11] while Black women are often stereotyped as intimidating or “insane” when they question authority.^[12] Black children are viewed as “mature” or “adult-like” by whites.^[13] This perception of Black children, in turn, is used as a justification by police when they use force against them as they are viewed in ways that are similar to Black adults.As a result of these racialized perceptions of threat and danger, people of African descent experience the highest rates of use of force during contacts with law enforcement.^[14]

 

171. Several witnesses who appeared before the Commission linked the disproportionate police killings of people of African descent with chattel slavery and what historian Saidiya Hartman calls “the afterlife of slavery.”^[15] Prior to the abolition of slavery, communities in the South utilized informal slave patrols to regulate enslaved Africans and to put down insurrections among enslaved populations. Following the Civil War and the abolition of slavery, slave patrols were reconstituted as formal police departments tasked with a similar mission: suppressing Black populations through enforcement of Black Codes and de jure^[16] Many of the witnesses argued that while slavery and Jim Crow have ended and the laws may have changed, the “New Jim Crow” has continued to operate in much the same way as its predecessors.^[17]

 

 

U.S. Law Enforcement Agencies Routinely Target People of African Descent Based on Racist Associations between Blackness and Criminality

 

172. The Commissioners find that U.S. law enforcement agencies routinely target people of African descent based on racist associations between Blackness and criminality.^[18] Police, however, do not explicitly rely on race to justify such stops. Instead, they use traffic infractions ranging from speeding to littering to expired registration tags as the legal basis for these stops. This practice, known as use of a “pretextual stop,” enables police to stop, surveil, and harass people of African descent. Although this practice is discriminatory and immoral, it is legal under U.S. law. In a series of cases, the U.S. Supreme Court has found that as long as officers have an “objectively reasonable” basis for the stop (i.e., a traffic infraction), their subjective motivation for the stop (i.e., racial prejudice or stereotyping) is irrelevant.^[19]

 

173. Because law enforcement is constitutionally enabled to engage in pretextual stops, Black drivers are targeted by police officers that suspect them of crimes for no reason other than the color of their skin or phenotype. This racially disparate form of policing is reflected in statistics on police stops. According to testimony by one witness, “[i]n the state of Maryland, Black people make up slightly less than one third of the population. Yet year after year, Black citizens accounted for approximately half of all traffic stops.”^[20]Partially due to the racially disparate rates of contact, during traffic stops, Black people experience higher rates of police use of force.^[21]

 

174. These are not abstract problems within policing. Racial profiling affects real people and causes significant harm, up to and including death. The Commissioners heard testimony from the representatives of Tyrone West, a Black man killed in 2013, in Baltimore, Maryland, a city rife with racial disparities in stops and policing. At the time, Mr. West was giving one of his neighbors a ride to work using his sister’s 1999 Mercedes. Mr. West and his neighbor were followed by two officers in an unmarked police vehicle. The officers initiated a traffic stop, citing “suspicious” behavior. They asked Mr. West and his neighbor if either of them was carrying drugs and asked them to step out of the car and onto the curb. There are conflicting reports about what happened next. Some eyewitnesses say that Mr. West and the neighbor just exited the car, and others say that the police were abusive, pulling Mr. West out of the car by his dreadlocks. The officers then shouted expletives at Mr. West and told him to get on the ground. They tasered him on his neck at least four times. They then searched Mr. West’s car and found no drugs. The officers later claimed they saw something bulging out of Mr. West’s sock. When one of the officers reached for Mr. West’s foot, he brushed the officer’s hand away. Mr. West was handcuffed and pepper sprayed. When Mr. West reacted to the resulting pain, officers began striking him with fists and batons. At some point during the beating, Mr. West stopped breathing because, witnesses allege, multiple officers were on his neck and back for up to five minutes. It took 30 to 45 minutes for the paramedics to arrive and then transport Mr. West to the hospital where he died of cardiac arrhythmia.^[22]

 

175. The Commissioners heard testimony from the family and representatives of Sean Bell, who was murdered by police in a hail of 50 bullets the night before his wedding, after he and his friends left his bachelor party. According to witnesses, the undercover detectives never identified themselves to Mr. Bell or those who were in the car as they approached the men with their weapons drawn, nor did they warn Mr. Bell before opening fire.

 

176. The Commissioners received written evidence from representatives of Tavis Crane, who was murdered by a police officer following a pretextual stop. Mr. Crane was driving when his two-year-old daughter accidentally dropped a piece of candy out of the rear passenger side window. Shortly thereafter, Mr. Crane was pulled over for a traffic stop. His car was quickly surrounded by three officers who shined flashlights into his car and asked him to come out. When Mr. Crane asked what he had done wrong, an officer pulled out his gun and pointed it at the car and at Mr. Crane. At the same time, an officer named Roper told everyone in the car to raise their hands and they complied. Roper then entered the vehicle through the rear driver’s side door, climbed over another passenger, placed his arm around Mr. Crane’s neck, pointed his gun at Crane’s face, and told him to turn off the car or he would kill him. At all times, Mr. Crane’s hands were visible and it was clear he was unarmed, but Roper nevertheless shot him at close range. A dash cam video revealed that Mr. Crane was shot several times. He sustained multiple injuries and died.

 

177. A similar use of deadly force occurred in the case of Momodou Sisay following a traffic stop. An officer tried pulling him over for an expired tag. Mr. Sisay, shaken and scared by the recent murder of George Floyd, continued to drive. The officer followed Mr. Sisay and then administered a highly controversial practice known as a position intervention (or PIT) maneuver, with his squad car, forcing Mr. Sisay’s car off the road and into some trees and bushes, leaving it hanging over the ledge of a cliff. Squad cars then surrounded Mr. Sisay’s vehicle. Mr. Sisay told his girlfriend on the phone, “I’m surrounded by armed officers. I think they’re going to kill me.” At least 100 officers arrived at the scene and the SWAT team was called. Police allege that as they approached Mr. Sisay’s hanging car, he refused to comply with verbal orders and flashed a handgun at officers. However, Mr. Sisay’s family disputes that Mr. Sisay brandished a gun at the officers. Officers fired three rounds of shots at Mr. Sisay, killing him. More than 200 shots hit Mr. Sisay’s car. The officers had body cameras on during the killing but have not released the footage.

 

 

1. “BROKEN WINDOWS” OR “ORDER MAINTENANCE” POLICING TRIGGERS DEADLY POLICE VIOLENCE AGAINST PEOPLE OF AFRICAN DESCENT

 

178. Modern U.S. policing has particularly concerned itself with maintaining order in the public domain by proactively targeting enforcement efforts at low-level offenses and infractions.^[23] This mode of policing is known as “broken windows”^[24] or “order maintenance” policing. It is based on the now-debunked theory that the presence of “disorder” and “disorderly people” indicates that spaces and communities are unsafe and function as a gateway to more serious criminal offenses. Police, therefore, direct their attention at these forms of disorder, seeking out individuals engaged in activities such as panhandling, loitering, selling drugs, or simply appearing out of place.^[25] Indeed, a recent study by The New York Times found that officers in four large police departments spent the bulk of their time on low-level officer-initiated calls and less than four percent on investigating violent crime.^[26]

 

179. While the concept appears race-neutral on its face, the Commissioners find that this mode of policing relies on racialized assumptions about what constitutes disorder and which communities are disorderly. The Commissioners also observed that policing of low-level offenses increases police contact with residents of poor, Black communities and such encounters often escalate into violence. One need look no further than the circumstances that led to the high-profile police murders of George Floyd for allegedly using a counterfeit $20 bill and Eric Garner for selling loose cigarettes for examples of this dynamic. In each instance, police targeted these Black men because they were accused of low-level, non-violent crimes, despite the fact that they were not a threat to anyone in their communities, including law enforcement.

 

Race-based Street Stops and “Stop-and-frisk” Policies Drive Racially Disparate Rates of Arrest and Trigger Deadly Police Violence against People of African Descent

 

180. The Commissioners find that race-based street stops, otherwise known as “stop-and-frisk,” are another form of “order maintenance” policing that drives not only racially disparate rates of arrests, but often triggers the use of deadly force by police.^[27] The Supreme Court has interpreted the Fourth Amendment of the Constitution to permit officers to stop an individual if they have a reasonable, articulable basis to suspect that the person has or will commit a crime. In addition, the police may conduct a limited pat down search or “frisk” if they reasonably believe the person to be presently dangerous and carrying a weapon.^[28] As noted by Jonathan Moore,^[29] the attorney for Eric Garner’s estate, the stop of Mr. Garner was consistent with the illegal stop and frisk pattern and practice of the New York Police Department, which disproportionately stops and frisks people of color. From about 2008 to 2012, there were four million documented stops and frisks on the streets of New York, 90% of which were directed at people of color, and 90% of which led to no further investigative activity. Yet, even though Black people were stopped at a higher rate than whites, contraband was found on white people at a higher rate than that of Black people. Since New York entered a consent decree^[30] in the stop and frisk case, although the number of stops has decreased, the percentage of people being stopped is still the same in terms of the racial breakdown, which indicates that officers are still making decisions based on race more than any other factor. These stops were likely based on racial suspicion rather than reasonable suspicion.

 

181. The cases that the Commissioners heard revealed a similar pattern of stops based on little to no evidence of criminality and leading to police killings of civilians. In the case of Michael Brown, a Black teenager whose murder by Ferguson, Missouri police officer Darren Wilson galvanized the Black Lives Matter movement, the basis for the stop was that Mr. Brown was walking with a friend in the middle of the street in violation of a Ferguson City ordinance. After ordering Mr. Brown “to get the F off the street,” the officer attempted to grab Mr. Brown through the window of his patrol car door. Following a brief struggle, Mr. Brown tried to run away and was shot 12 times as he held his hands in the air pleading, “Don’t shoot. I don’t have a gun, I’m unarmed.” Mr. Brown’s body was then left on the ground for four hours in broad daylight with onlookers assembled.

 

182. Similarly, Nathaniel Pickett II was crossing the street in a marked crosswalk, having committed no crime. Mr. Pickett was stopped by a deputy sheriff, who claimed that Mr. Pickett “glanced” at him strangely while he was crossing the street, which was the basis for his suspicion. Mr. Pickett ran from the officer, who chased him and tried to grab him.^[31]

 

183. As Mr. Pickett attempted to run away, he fell down some steps and injured himself. The officer threatened to taser Mr. Pickett and then began forcefully punching him in his body, head, and face. Although the officer claimed that Mr. Pickett punched him 10 or 20 times, this was not corroborated by the civilian passenger in the officer’s car. The officer shot Mr. Pickett twice in the chest at point blank range while he was on the ground and obviously unarmed. The officer never called for medical care for Mr. Pickett, who bled to death from his wounds.

 

184. In the case of Shem Walker, an undercover officer who was working in an anti-drug operation was sitting on the stoop of Mr. Walker’s mother’s apartment building. Other officers were working as “ghosts,” police parlance for undercover officers whose job is to provide backup for another officer doing “buy-and-bust” work. Mr. Walker, an Army veteran, was known for shooing away loiterers or drug dealers from the property. In this case, the undercover detective never revealed himself as a police officer to Mr. Walker before drawing his gun and firing three shots, killing Mr. Walker on the sidewalk in front of his mother’s home.

 

185. The Commissioners heard testimony regarding the murder of Freddie Gray by Baltimore police officers. Mr. Gray and two of his friends were walking in a poor, Black neighborhood. They were not engaged in any illegal activity, just talking to each other while walking. Two policemen on bike patrol rapidly rode toward them on their bikes. To avoid being stopped, questioned, frisked, harassed, searched, assaulted, arrested, and prosecuted without cause, they ran from the officers. Eventually, Mr. Gray was arrested and killed while in police custody.

 

 

1. POLICE KILLINGS OF PEOPLE OF AFRICAN DESCENT SYSTEMATICALLY FOLLOW VIOLATIONS OF THEIR FOURTH AMENDMENT RIGHTS

 

“I say it is too late for my son. They killed him. It is no justice for him. But we must still stand for justice. We must get justice for those who come behind him.”

—Gwen Carr, mother of Eric Garner^[32]

 

 

186. In hearing after hearing, Commissioners find a pattern of police violations of the Fourth Amendment rights of Black people to be secure in their persons, houses and effects from unreasonable searches and seizures. These violations included the securing of warrants that lacked probable cause due to reckless disregard for the truth in the allegations, some based on information from unreliable informants. The Commissioners find a proliferation of the use of risky, no-knock warrants. Police illegally entered the homes of many Black people without a valid warrant or exigent circumstances. These Fourth Amendment violations led invariably to the use of excessive force, and ultimately, to police killings of Black people.

 

Police Agencies’ Recklessness in Securing Warrants or Dispatching Officers Encourages Violence against Black People

 

187. A valid warrant must be supported by probable cause of criminal activity.^[33] If an officer is reckless or lies when including allegations in an affidavit, the warrant the judge signs may not be supported by probable cause. In some cases, allegations by unreliable informants have led to the unjustified killings of Black people.^[34]

 

188. Fifty-seven-year-old Alberta Spruill was killed after officers mistakenly forced their way into her apartment. Police secured a no-knock warrant based on information from an unreliable, decertified informant. Although several officers had serious doubts about the informant’s credibility, they did not conduct a background check or relay their doubts to other officers. The officers executing the warrant knocked the door off its hinges, threw Ms. Spruill to the ground, and handcuffed her so violently that blood vessels burst in her shoulders. She died of cardiac arrest.

 

189. Twelve-year-old Tamir Rice was in a park playing with a toy gun. A 911 caller reported that someone—likely a minor—was pointing a pistol—likely fake—at random people. The police dispatcher failed to tell the officers who responded to the call that the gun was likely fake or that Tamir was a young boy. Officers fired two shots only seconds after their arrival, killing him.

 

Risky “No-Knock Warrants” Proliferate in Cases of Police Violence against People of African Descent

 

190. When executing a warrant, an officer is required to knock and announce his or her presence before entry.^[35] Officers frequently ask a judge for a no-knock warrant, which obviates the need to knock and announce, resulting in forced entry. A product of the “War on Drugs,” these dangerous no-knock warrants have resulted in the killings of several Black people, as the Commissioners find. No-knock entries have a particularly harmful effect on Black women. This is exemplified by the cases of Breonna Taylor and Tarika Wilson.

 

191. Officers secured a no-knock warrant, which was changed to a knock-and-announce warrant, to search Ms. Taylor’s apartment based on an investigation of a third party (neither Ms. Taylor nor her boyfriend, Kenneth Walker). Plainclothes officers violated the warrant and used a battering ram to forcibly enter the apartment, where Ms. Taylor was sleeping with Mr. Walker. Believing it was a home invasion, they asked who was there. Hearing no response, Walker fired a warning shot with a gun he legally possessed, allegedly striking one officer in the thigh, although evidence later gathered indicated that the bullet that hit the officer was fired by police, not Mr. Walker. The officers shot 32 rounds into the apartment. Six shots hit Ms. Taylor, killing her as she slept.

 

192. Wilson was killed under similar circumstances. She was holding her 14-month-old baby when police shot her dead in front of her six children, ages one through eight. Ms. Wilson lived with her boyfriend, whom police suspected of drug dealing. Claiming that Ms. Wilson’s boyfriend was dangerous, officers secured a no-knock warrant for his arrest. They burst into the home, set off stun grenades, and shot a semi-automatic rifle that ripped off the baby’s finger before killing Ms. Wilson, who had retreated upstairs with her children after the arrival of the police.

 

There is a Pattern of Police Killings Following Home Invasions without a Warrant or Exigency

 

193. The Fourth Amendment requires that police have a valid warrant to enter a home unless there are exigent circumstances.^[36] Yet in many cases, officers forcibly entered homes with no warrant or exigency, killing Black people without legal justification. This is particularly egregious as people should be afforded maximum privacy in their own homes.

 

194. Botham Jean was in his apartment eating ice cream when he was killed by an officer who claimed she mistakenly entered the apartment, thinking it was hers. Another officer admitted that Mr. Jean’s death resulted from a “web of mistakes.” Eighteen-year-old Ramarley Graham was killed in his family home in front of his grandmother and six-year-old brother by an officer who unlawfully entered the home without a warrant or exigency. Police, who were surveilling other activity unrelated to Mr. Graham, began following and chasing Mr. Graham and tried to knock down the door of his home, eventually gaining entrance.

 

4. POLICE ROUTINELY USE EXCESSIVE AND LETHAL RESTRAINTS AGAINST PEOPLE OF AFRICAN DESCENT

 

“During this entire incident, my brother begged, he begged the officers, please save his life. . . he told police officers that he could not breathe at least 12 times, including within the first few, they’re going to kill me and called out but his mother to save him yelling Mama, Mama. My brother said, ‘Tell my kids, I love them. I’m dead.’ His last words were, ‘I can’t breathe.’” —Philonise Floyd, brother of George Floyd^[37]

 

195. The Commissioners heard evidence, in approximately a third of the cases presented, regarding lethal application of restraints such as compression asphyxia and lateral vascular neck restraint (chokehold), as well as the deadly use of Tasers and vehicles by police against unarmed persons of African descent. Indeed, such brutal killings have formed the rallying cry of anti-police brutality activists and the Black Lives Matter movement: “I can’t breathe.” The Commissioners heard expert witness testimony on the disproportionate use of Tasers by police officers nationwide against people of color. Taken together, the Commissioners find a pattern of excessive and unnecessary restraints used against people of African descent.

 

196. In addition to this national pattern, the Commissioners heard evidence of local patterns and practices employed by particular police departments, such as “rough rides” used by the Baltimore Police Department and the use of vehicles by the Metropolitan Police Department of the District of Columbia to kill and maim Black victims on motorcycles. George Floyd was killed by officers in the Minneapolis Police Department (MPD). The attorney for the Floyd family testified that officers in the MPD receive “Killology training.” They are instructed to kill rather than de-escalate conflict situations. Killology training was also connected to the 2016 police killing of Philando Castile, who was shot seven times at a traffic stop, the attorney said. During the five-year period from 2015 to 2020, the MPD reported that its officers used violence against Black people at seven times the rate that they used violence against white people.

 

Tasers Are Used Disproportionately by Police Against Black People and Constitute a Form of Deadly Force

 

197. In more than a dozen cases, the Commissioners heard evidence that victims were subjected to excessive force by tasering. Tasers are electrical weapons that “deliver pulses of electrical charge that cause the subject’s muscles to contract in an uncoordinated way, thereby preventing purposeful movement. This effect has been termed ‘neuromuscular incapacitation.’ The charge is delivered through metal probes that are fired towards the subject but which remain electrically connected to the device by fine wires.”^[38]

 

198. As noted in the Guidance on Less Lethal Weapons in Law Enforcement by the United Nations Human Rights, Office of the High Commissioner, “The risk of significant injury or even death is increased in certain conditions, including where the individuals who have been electrically shocked have heart disease; have taken certain prescription or recreational drugs, or alcohol, or both; or are for other reasons more susceptible to adverse cardiac effects.”^[39] While some local police forces require the use of nonlethal force where possible, Tasers are nonetheless routinely employed as a first line of defense, despite their lethal nature. Moreover, while police ostensibly seek compliance from victims through the use of Tasers, the Commissioners heard evidence that Tasers render victims unable to respond to commands due to neuromuscular incapacitation. Indeed, the Commissioners find that tasering is often escalated to include use of additional deadly force such as asphyxiation and/or shooting. For example, the Mr. Lee Merritt, the attorney for the family of Patrick Warren, Sr. discussed the use of a similar weapon, a stun gun:

 

Patrick Warren Sr. was shot to death by officer Reynaldo Contreras . . . following a request for mental health services. . . . Officer Contreras discharged 50,000 volts of electricity by use of stun gun after Warren failed to comply with Contreras’ order to get down on the ground upon exiting his home. The stun from Contreras’s electric weapon caused Warren to fall to the ground in great pain. However, the weapon was ineffective in neutralizing Warren’s manic condition. Warren remained conscious, mobile, and increasingly irritated by Contreras’s actions. Officer Contreras escalated the encounter by brandishing his firearm and shooting more than three times in rapid succession until Warren collapsed to the ground a second time. Contreras’s actions were later ratified.^[40]

 

199. The Commissioners find a nationwide pattern of disproportionate use of deadly force by Taser against people of color based on the testimony of expert witness attorney, Michael Avery. Drawing from a Reuters survey^[41] on Taser-related deaths through the end of 2018, Mr. Avery testified that of the 1,081 people who have died in the United States as a result of Taser use, “32% were Black, although Black people constitute only 14% of the United States population. On the other hand, 29% were white, although whites constitute 60% [of the U.S. population].”^[42] Avery further discussed marked findings of racially disproportionate use of Tasers in some states and localities. For example, in Connecticut, “police use Tasers against African-Americans 56% of the time, although in Connecticut, they make up only 19% of the population. So we see that across the country, Taser use is much greater against African-Americans than against whites,”^[43] he said.

 

Pattern of Unlawful and Excessive Force against People of African Descent from Chokeholds and Compression Asphyxiation

 

200. The Commissioners similarly find a pattern of unlawful and excessive force against people of African descent from chokeholds and compression asphyxiation, by either kneeling or standing on victims, and by cuffing victims face down and applying pressure to their heads and necks. These deadly techniques were often applied in tandem, not only with handcuffing, but at various times with the practice of hog-tying victims or subjecting them to “wrap top” practices.

 

201. Eric Garner was placed in a chokehold by New York Police Department officer, Daniel Pantaleo, and asphyxiated after an unlawful stop, while multiple officers restrained him face down, pressing their weight on him. The medical examiner determined that the cause of death was a combination of neck and chest compression. In the case of George Floyd, the Commissioners received graphic evidence showing Mr. Floyd being killed by Officer Derek Chauvin who placed his knee on Mr. Floyd’s neck for nearly nine minutes. An independent medical examiner determined Mr. Floyd’s cause of death to be mechanical asphyxia due to neck and back pressure by the officer. In the face of this overwhelming evidence, the Hennepin County Medical Examiner incredibly made no physical findings to support a cause of death of traumatic asphyxia or strangulation. Tashii Farmer Brown was tasered and placed in a chokehold for more than one minute in the presence of three other officers from whom he had originally sought aid. Mr. Brown’s cause of death was declared homicide by asphyxiation. Manuel Elijah Ellis was killed by police after an unlawful stop while he was walking home after purchasing After Mr. Ellis was stopped, slammed with a police car door, kicked, tasered, and then brutally choked by police, he was hogtied and left for dead on the sidewalk. Like so many other victims of fatal police violence, his last words were, “I can’t breathe.”

 

202. In testimony from Mr. Benjamin Crump, the attorney for the Floyd family, the Commissioners heard: “The chokehold is legal in most cities in America, many people don’t know that. And many people don’t know the chokehold, over 75% of the time, is applied on men of color.”^[44]

 

203. In addition to the use of the chokehold, the Commissioners heard testimony about police officers using their weight to compress the bodies of people of African descent, brutally crushing and suffocating them.

 

204. Daniel Prude died from a brain injury administered at the hands of police officers, after the naked Mr. Prude was handcuffed, placed face down, and restrained by two officers while a third officer executed a “triangle push-up” on the side of his head, pressing it into the sidewalk. Tyrone West was giving a neighbor a lift to work when he was stopped by an unmarked car for the “suspicious behavior” of backing into an intersection. After he and his neighbor were ordered out of the vehicle, Mr. West was savagely beaten and four officers then stomped on Mr. West’s upper body and another officer placed a knee on his back for one minute. Mr. West stopped breathing and could not be resuscitated. At the time of his death, 10 to 25 officers were assembled at the scene.

 

205. While the Commissioners heard testimony regarding the disproportionate use of restraints on Black people, it also received evidence of an unlawful pattern of using restraints against women and transgender individuals. For example, Shereese Francis—a mentally ill woman whose mother called 311 to get her daughter medical attention—was seized by four officers who chased Ms. Francis and beat her instead of seeking to de-escalate the situation given the mental health crisis she was experiencing. In an attempt to handcuff Ms. Francis, four police officers held her face down on her mother’s bed while kneeling on her back, causing her to stop breathing due to compression asphyxia.

 

206. In the case of Kayla Moore—a transgender woman whose roommate had called in a wellness check—police arrived, stating they had an outstanding warrant for someone by Ms. Moore’s birth name, even though the individual they sought was born 20 years before Ms. Moore. When Ms. Moore disputed that she had an outstanding warrant, six officers seized her and attempted to put her in a restraining device called a “wrap top.” As her sister, Ms. Maria Moore, testified, “[W]ith six offers on top of her putting her in this torture device, do they realize at some point she had stopped moving… [T]hey failed to check on Kayla. Because her last breath, her last words were, ‘Get off me, I can’t breathe.” And they ignored her, her cries for help.”^[45]

 

There Is a Pattern and Practice of “Rough Rides” by the Baltimore Police Department against Black People

 

207. In addition to finding a nationwide pattern of the use of unlawful restraints being disproportionately applied to people of African descent, the Commissioners heard evidence of a pattern and practice of “rough rides” used by the Baltimore Police Department. As the attorney for the Gray family explained, after Freddie Gray was stopped without cause, two officers “hog-tied him by cuffing his hand behind his back, shackling his feet together, bending his legs behind his back and fastening his shackled feet to his cuffed hands.”^[46] He was then placed in the back of a van without a seatbelt and taken for a “rough ride” for over half an hour, during which his body was battered against the walls of the van as the driver wildly drove and swerved. The attorney for the family testified, “police with amusement, especially the white police, referred to it as tossing, referred to it as about all other kinds of names. And many of these people who were in the same position as Mr. Gray that day, received serious and life threatening injuries as a result of being exposed to these rough rides.”^[47]

 

There Is an Emerging Pattern and Practice of Police Use of Vehicles as Deadly Weapons against People of African Descent: Washington, DC Metropolitan Police, and Others

 

208. The Commissioners also heard testimony about an emerging pattern and practice of police using vehicles to kill and maim people of African descent in Washington, D.C. An independent investigation revealed that Metropolitan Police (MP) officers deliberately chased Jeffrey Price, while he was on his dirt bike, into a calculated trap at the intersection where a police cruiser crashed into him, causing a fatal accident. The attorney for the family, Mr. David Shurtz, explained to the Commissioners that police officers in D.C. target young Black men on dirt bikes and hit them with government vehicles. The MP often fails to investigate such cases. When an investigator was appointed to investigate the Price case, it was a former police officer who was himself implicated in a previous motorcycle collision that led to the fatal injuries of another Black man.

 

209. In other cases outside the D.C. area, the Commissioners heard evidence that officers used vehicles to pursue and run victims off the road without justification, as in the case of Momodou Sisay, who was forced off the road and shot by a SWAT team.

 

210. The Commissioners find an alarming, national pattern of the use of deadly restraints against people of African descent by Taser, compression asphyxia, and chokehold, as well as local practices, such as the Baltimore Police Department’s “rough rides” and the D.C. Metropolitan Police’s use of vehicles to disproportionately target people of African descent with excessive and deadly force.

 

5. LETHAL POLICE VIOLENCE AGAINST PEOPLE OF AFRICAN DESCENT IS EXACERBATED BY MEDICAL APARTHEID AND POLICE FAILURE TO PROVIDE MEDICAL ATTENTION  

 

211. The history of medical apartheid has been well documented in the United States. In her study, Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present,^[48] Harriet Washington brought to the fore the absence of adequate health facilities among Black people, as well as the medical field’s experimentation on Black bodies. Unscientific ideas about the threshold of pain that Black people can withstand have been handed down from one generation to the next and continue to guide the actions of the police in the U.S. today. The hearings documented the collusion between the police, the hospitals, the media, and legal ecosystem in the dehumanization and criminalization of Black people.

 

212. In 13 of the 44 cases that Commissioners heard, police denial of or failure to obtain timely medical attention contributed to the deaths. Even more damning were the cases in which the police actively prevented medical treatment from being administered. Antonio Garcia was bleeding out in his front seat of his car, while the officer who shot him stood nearby, doing little to assist. He prevented Mr. Garcia’s wife, Ms. Heather Garcia, a registered nurse, from providing medical assistance to her husband. The experience of Patrick Dorismond in New York in 2000 gained international attention when it was revealed that after shooting him in the chest, the police handcuffed him while on the ground, instead of seeking to provide medical attention.

 

213. The experiences of untold hundreds of cases point to the deadly results of the failure to secure medical attention, especially of those who were undergoing mental stress.

 

214. The Commissioners heard evidence not only of the dehumanization of those shot or choked, but also the complete disregard for Black life. The case of Andrew Kearse graphically exposed the outcomes of lacking medical attention. Mr. Kearse was briefly chased by officers for a traffic violation. When they caught up to him, he couldn’t stand or walk, and it took three officers to carry him to the car. Mr. Kearse was in the back seat of the police car for 17 minutes. During that time, he pleaded for help 70 times, repeating the words, “I can’t breathe.” Kearse’s cries for help were disregarded. Mr. Kearse requested that the window be opened but the officer refused. He said that since Mr. Kearse could talk, he could breathe, and thus there was no medical condition or medical emergency. Ambulances were not summoned and no EMT’s were called. Instead of taking Mr. Kearse to a hospital, located eight minutes away, officers drove him to the police station. He died of a heart attack one minute before they arrived at the station. The lawyers representing the family retained a medical expert, who concluded that if Mr. Kearse had been treated promptly, his life would have been saved. And there was a 78% to 80% chance he would not have suffered brain injury.

 

215. The Commissioners similarly heard that after 12-year-old Tamir Rice was shot, there was no effort to offer medical aid. When Tamir’s sister attempted to rush to her brother’s side to render assistance and comfort him, the police tackled her and placed her in the police car. Tamir died the next day from the gunshot wounds.

 

216. The Commissioners find that in case after case, the police’s refusal to provide or allow medical assistance amounted to per se failure to secure medical attention.^[49]

 

 

6. LETHAL POLICE VIOLENCE AGAINST PEOPLE OF AFRICAN DESCENT EXPERIENCING MENTAL HEALTH CRISES IS SYSTEMATIC

 

 

“They were not sent there to detain him. My brother was not under arrest. He had not committed a crime. He simply needed mental health. He needed mental health.”—Brendan Daniels, brother of Damian Daniels^[50]

 

“What binds these cases is the tragic loss of life in circumstances in which the death could be avoided.” —New York Attorney General Letitia James ^[51]

 

“The justice system doesn’t give a damn about us…That’s not built for anyone in the community; that’s built for the police to keep slaughtering people.” —Joseph Prude, brother of Daniel Prude^[52]

 

 

217. The overwhelming weight of the testimonies before the Commissioners demonstrated that the police should not be the first responders for persons experiencing mental health crises: “[T]he risk of being killed during a police incident is 16 times greater for individuals with untreated mental illness than for other civilians approached or stopped by officers.”^[53]

 

218. In case after case, the Commissioners were presented with evidence that police suffocated mentally ill persons to death. Police officers continue to respond in this manner to people experiencing mental health crises, in the United States, in general, and in Black communities, in particular. In these situations, the police are not adequately trained and they often react with deadly force, killing large numbers of mentally ill Black people.

 

219. As the Commissioners heard in the case of Damian Daniels, police departments receive additional funding for emergency calls, so they seek to respond to mental health calls in place of more qualified and suitable agencies such as the American Red Cross. Indeed, there is no universal protocol in the U.S. for dealing with mental health calls.

 

220. Testimony before the Commissioners, drawing evidence from the American Psychiatric Association (APA), revealed that the incidence of mental illness among Black people is similar to that of the general population. But there are large disparities between the two in the receipt of mental health services. People of African descent receive poorer quality of care and experience a broader lack of access to critical care. As the APA report stated, “Only one in three African-Americans who need mental health care receive it.”^[54]

 

221. Regarding the absence of care, “police are more likely to approach African-American mentally ill persons as criminal subjects rather than as people having health problems,”^[55] according to the APA. This conclusion was borne out repeatedly in the cases heard by the Commissioners.

 

222. Among the cases the Commissioners considered was the killing of Darius Tarver. Mr. Tarver, a university student and an aspiring law enforcement officer, had suffered a brain injury that affected his mood and daily life functions due to an auto accident one week prior to being killed. During an episode of emotional disturbance, he was repeatedly tasered by police before being shot to death. In a particularly egregious case, Linwood Lambert, a mentally ill man, called police on himself to take him to the Emergency Room (ER). When he arrived near the police car, Mr. Lambert became disturbed and agitated and three officers tasered him 20 times directly outside of the hospital. Rather than being taken inside the hospital for treatment, he was handcuffed, shackled, and placed in the back of the police car and transported to the police station where upon arrival, he was found dead after suffering a heart attack. Similarly, Ritchie Lee Harbison, an emotionally disturbed 62-year-old Black man, died of cardiac arrest after being tasered by police officers while he was naked and unarmed.

 

223. The Commissioners received testimony from Mr. Joseph Prude, the brother of Daniel Prude, who called 911 when he became concerned about his brother’s safety during an apparent mental health crisis. Mr. Prude had been released from the hospital earlier that evening after expressing suicidal thoughts and later left his brother’s house wearing thermal underwear and a tank top in below-freezing temperatures. Police eventually found him naked and acting irrationally in the street. Graphic police body camera footage shows officers confronting Mr. Prude with stun guns and ordering him to lie down on the snow-slicked road, then cuffing his hands behind his back when he complied. An increasingly agitated Mr. Prude began to yell and spit at officers and attempted to stand up. One of the seven officers on the scene placed a “spit hood” over his head. Officers then restrained Mr. Prude by pinning down his head and feet and kneeling on his back.

 

Police Violence against People of African Descent Experiencing Mental Health Crises Is Routine and Systematic

 

224. Shereese Francis, who lived with schizophrenia, was killed by New York City police officers. In the month leading up to her murder, Ms. Francis had stopped taking her medication because of its side effects. When Ms. Francis had refused her medication on prior occasions, her mother had called an ambulance, which transported her to a nearby hospital for treatment. On March 12, 2020, Ms. Francis experienced a mental health episode, causing her to become uncooperative with her family. Her sister called 311, the non-emergency number, and requested an ambulance to take Ms. Francis to the hospital. However, the 311 response team connected Ms. Francis’s sister to a 911 operator. Within half an hour of the arrival of four police officers at the Francis residence, Ms. Francis was dead from asphyxia.

 

225. The Commissioners heard evidence in the case of Jason Harrison, who also needed to be admitted to the hospital. The police had been to the house at least ten times before the date on which officers killed Mr. Harrison. “Within 10 seconds of the front door being opened, Jason Harrison lay dying in his own driveway shot at least five times twice in the back by officers . . . Jason hadn’t committed any crime, nor did he likely understand why officers were even there.”^[56]

 

226. Mubarak Soulemane was killed after being shot seven times through the window of his car by an officer following a car chase. Mr. Soulemane had suffered from schizophrenia for more than six years.

 

227. The police have contrived a questionable diagnosis called “excited delirium.” This is “a misappropriation of medical terminology, used by law enforcement to legitimize police brutality and to retroactively explain certain deaths occurring in police custody,” according to the findings^[57] of the Brookings Institution. “Law enforcement officers nationwide are routinely taught that ‘excited delirium’ is a condition characterized by the abrupt onset of aggression and distress, typically in the setting of illicit substance use, often culminating in sudden death. However, this ‘diagnosis’ is not recognized by the vast majority of medical professionals. In fact, ‘excited delirium’ is not recognized by the American Medical Association, the American Psychiatric Association, or the World Health Organization, and it is not listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).”

 

228. In the case of Mr. Prude, the police investigation found no wrongdoing by the officers, instead determining that Mr. Prude’s death was caused by “excited delirium.”

 

229. In all cases the Commissioners heard in which a Black person was experiencing a mental health crisis, police responded instead of trained medical professionals. And in every case, the police used gratuitous violence that led to the victim’s death.

 

 

7. POLICE SYSTEMATICALLY USE EXCESSIVE FORCE AGAINST CIS- AND TRANSGENDER BLACK WOMEN, GIRLS, AND FEMMES

 

“Kayla was in distress. It was because she was Black, it was because she was transgender. That led to her death.”—Maria Moore, Sister of Kayla Moore ^[58]

 

“They use excessive force unnecessarily on Black women and girls to a much higher degree than they use white women and white girls.” —Benjamin Crump, attorney for the family of Breonna Taylor^[59]

 

“Black women and girls are direct targets of the War on Drugs.” —Benjamin Crump, attorney for the family of Breonna Taylor ^[60]

 

230. Although often marginalized in discussions of police violence against Black people, the Commissioners find that cis- and transgender Black women, girls, and femmes are disproportionately killed^[61] by police in the United States.^[62] According to the Washington Post, approximately 250 women were killed by police in the U.S. between 2015 and 2020.^[63] While experts suggest that women are less likely to be shot and killed by police because they are perceived to be less threatening than their male counterparts, such perceptions do not extend to Black women and girls. Black women constituted approximately 48 of the 250 women killed by police between 2015 and 2020. This means that “Black women, who are 13 percent of the female population, account for 20 percent of the women shot and killed [by police] and 28 percent of the unarmed deaths [committed by police].”^[64] One study found that unarmed Black women are most likely to be shot and killed by police than any other group, including Black men.^[65]

 

 

Police Abuse of Cis- and Transgender Black Women Is Driven by Gender and Racial Stereotypes

 

231. The Commissioners heard testimony from numerous witnesses, particularly expert witness Andrea Ritchie, describing the ways in which racial and gendered stereotypes make Black women vulnerable to various forms of police violence. Historically, Black women have been stereotyped as angry and aggressive, which increases the likelihood that police will use force against them. Ms. Ritchie, the author of Invisible No More: Police Violence Against Black Women and Girls, described a number of harrowing instances in which police abused or killed vulnerable Black women, including those who were pregnant. In the case of Nicola Robinson, a police officer kicked the unarmed pregnant woman in the stomach, allegedly stating, “You’re lucky I don’t kill your baby.”^[66] Robinson had not committed any crime.

 

Police Violence against People of African Descent is Encouraged by “War on Drugs” Policies

 

232. The Commissioners find that the War on Drugs is a significant driver of police violence against Black women and girls. Numerous studies have found that Black women are disproportionately subjected to pretextual traffic stops, a law enforcement tactic otherwise known as racial profiling.^[67] The Drug Policy Alliance reports that “[d]rug use and drug selling occur at similar rates across racial and ethnic groups, yet Black and Latina women are far more likely to be criminalized for drug law violations than white women.”^[68] Black women are not only more likely to be stopped, searched, and arrested for drug offenses than their white counterparts, they are also vulnerable to deadly police violence during drug investigations.

 

233. The Commissioners heard testimony from the families of Alberta Spruill and Breonna Taylor, two Black women killed by police during botched drug raids of their homes. In both cases, the police relied on faulty information to secure no-knock search warrants of the women’s homes as neither woman was involved in drug dealing. In the case of Ms. Taylor, members of the Louisville Police Department drug unit broke down the door to her apartment without announcing themselves pursuant to a no-knock warrant. When Ms. Taylor’s boyfriend, Kenneth Walker, fired a single shot at someone he reasonably believed to be an intruder, police opened fire, striking Ms. Taylor at least six In the case of Ms. Spruill, members of the New York Police Department similarly executed a no-knock warrant in search of drugs, kicking in her door and deploying tear gas and flash bang grenades. Once they gained entry to her home, police tackled the 57-year-old Ms. Spruill and placed her in handcuffs. The combined effects of the flash bang grenades, tear-gas, and use of force by officers caused Ms. Spruill to go into cardiac arrest. She was pronounced dead at a local hospital 20 minutes after the botched raid. None of the officers involved have been prosecuted for the murders of Ms. Taylor or Ms. Spruill.

 

Mental Health and Wellness Crises Precipitate Police Violence against Black Women and Girls

 

234. Black women are particularly vulnerable to police violence when police respond to calls for supportive care or aid for a mental health or other crisis. When police arrive at the homes of Black women in crisis, the Commissioners find that officers are often ill-equipped to address the needs of Black women. Instead, police respond with violence, undermining the safety of vulnerable Black women. The Commissioners heard testimony from the family of Kayla Moore, a Black transgender woman killed in her own home by police who were called to assist her with a mental health crisis. When police arrived, instead of offering Ms. Moore help, they threatened to arrest her on an outstanding warrant for someone else. When Ms. Moore attempted to tell them they were mistaken, she was tackled by four officers, who suffocated her as she struggled to breathe. As stated by Mr. Adante Pointer, an attorney for the Moore family, “…just because you are experiencing a mental health crisis, does not mean that that empowers officers to use force against you. Nor does it empower officers to remove you from your home.”^[69] None of the officers involved in the death of Ms. Moore have been prosecuted for her murder.

 

235. The murder of Ms. Moore in her own home during a mental health crisis is not an isolated incident. Indeed, the Washington Post found that 89 of the 250 women killed by police between 2015 and 2020 were killed in their homes.^[70] The Post also noted that “[f]or women and men, about one-third of the police encounters that led to shootings began with a report of a domestic disturbance, a 911 call or a traffic stop.”^[71]

 

 

Police Violence against Black Women is Compounded by Rampant Misgendering of Black Trans People

 

236. The Commissioners find that harms confronted by Black trans women extend beyond physical abuse and death at the hands of police. Rather, trans Black women are routinely subjected to humiliating treatment, disrespect and mis-gendering by police who have injured or even killed them. Ms. Moore’s family testified that Oakland Police officers left her lying on her stomach with her dress pulled up, exposing her private parts. According to Mr. Pointer:

 

Kayla died on her stomach without the dignity that anyone deserves, even an animal, because after she, after they noticed that she was no longer responsive, comments were made about her sexual orientation… as opposed to these officers going and getting the appropriate equipment in order to do CPR, they sat there and they talked about her in her sexual orientation and expressed some hesitancy of performing life saving measures.^[72]

 

Police Engage in Sexual and Physical Violence against Black Cis- and Transgender Women

 

237. The Commissioners note that Black cis- and transgender women are not only victims of deadly police violence, they are also vulnerable to sexual and physical abuse at the hands of law enforcement.^[73] As Ms. Ritchie observed during her testimony, “even when Black women or trans people aren’t killed by the police, they experience deep physical violence and humiliation.”^[74] In one high profile case, dozens of poor Black women were sexually assaulted by Tulsa police officer, Daniel Holtzclaw. Reports indicate that Holtzclaw likely targeted the women because they were poor and Black and therefore unlikely to be believed if they complained.^[75] Exposure to sexual and physical violence is particularly acute for transgender people. According to a report by the Anti-Violence Project, transgender people are 3.7 times more likely to experience police violence and seven times more likely to experience physical violence when interacting with police than cisgender victims and survivors.^[76] Ritchie observed that Black trans women are targeted by police for prostitution arrests and then subjected to sexual harassment and assault by police. Given these dynamics, it is unsurprising that sexual abuse is the second-most complained about form of police misconduct.^[77]

 

 

8. SYSTEMIC RACIST POLICE VIOLENCE KILLS AND TRAUMATIZES BLACK CHILDREN AND YOUTH

 

“My son laid on the pavement naked, where he took his last breath to ask the officer, Why did you shoot me? I’m dying.” —Venethia Cook, mother of Vincent Truitt^[78]

 

238. The Commissioners find that officers don’t hesitate to kill Black children and traumatize other Black youth who witness police kill their parents.

 

239. Twelve-year-old Tamir Rice was killed while he was playing with a toy gun in a park. A person sitting in a nearby gazebo called 911 and reported that someone who looked like a minor was playing with a pistol that was likely a fake. The Commissioners heard how two police officers shot Tamir within seconds of exiting their car.

 

240. One officer claimed that he ordered Tamir to put his hands up three times, and that he shot Tamir because he feared for his life. But the entire incident transpired in two seconds – too quickly for him to have made such an order. The Commissioners heard that Tamir reached down in his waistband and pulled out the gun and the officer fired two shots. Tamir’s sister, Tajai, who was also playing in the park at the time, ran over to Tamir but was tackled to the ground and unable to provide her brother with any aid or comfort. Officers did not offer any medical assistance to Tamir, who died the next day. Samaria Rice, Tamir’s mother, told^[79] the Commissioners: “…my daughter was placed in the back of the car, forced to watch her brother die.”

 

241. Venethia Cook, the mother of Vincent Truitt, testified, “My precious baby was only 17 years old when his life was taken by Cobb County police officer, shot his back twice. . . . My son ran in fear after being rammed multiple times by the police car. My son was shot immediately after exiting the vehicle, handcuffed, flipped around, his clothes were not cut off, were ripped off.”^[80]

 

242. Contrast the shooting of 17-year-old Vincent Truitt with the experience of Kyle Rittenhouse, a white 17-year-old who opened fire on a street in Kenosha, Wisconsin, killing two people who were protesting the shooting of Jacob Blake in the summer of 2020. New York University law professor, Kim Taylor-Thompson, writing in the Los Angeles Times, noted that pundits and political operatives described Rittenhouse as a “little boy out there trying to protect his community.” Even when he walked past police toting a semiautomatic rifle, police did not stop or question Rittenhouse. Professor Taylor-Thompson noted the dehumanizing language that places Black children outside the boundaries of childhood. She wrote:

 

But Rittenhouse was not perceived as dangerous. He was seen as a child. Contrast that with Tamir Rice. Cleveland Police Officer Timothy Loehmann sized up Tamir, a 12-year-old boy playing with a toy gun, in a split second. He saw the boy as dangerous and shot and killed him within two seconds of getting out of his patrol car. The inability to see Tamir as a child cost him his life. Choosing who counts as a child is steeped in this country’s racism. A Black 17-year-old armed with a semiautomatic would not have lived to tell the story.^[81]

 

243. This example demonstrates that police employ a double standard; they see Black children as threatening and deserving of being killed, while excusing public killing by a white youth.

 

244. The Commissioners also heard evidence of the killing of Tarika Wilson, the mother of six children, ages one through eight. Ms. Wilson was holding her 14-month-old baby, named Sincere, when the police executed a no-knock warrant. With all the children in the house, the police began shooting. One bullet ripped through Sincere’s index finger, severing it, before entering Ms. Wilson’s chest, killing her.

 

245. In a similar vein, the Commissioners received testimony about the killing of Casey Goodson, who was executed in front of his five-year-old brother and three-year-old cousin. Tamala Payne, Mr. Goodson’s mother, insisted on using the term “execution” to describe her son’s killing. Mr. Goodson was shot in the back multiple times as he walked through the door to his home. He fell onto his kitchen floor where his family found him before they were all ordered out of the house at gunpoint by other police officers who poured into the home after the shooting of Mr. Goodson. He was not committing any crime when he was shot nor did he pose a threat to any officer or anyone else. He was walking into his home, filled with his family who were awaiting his return with the takeout food he had purchased for them.

 

246. At the time of Mr. Goodson’s execution, there were nine family members inside the house, five adults and four children. It was Mr. Goodson’s little brother who called his mother to report that Casey had been shot. The Officer who shot Mr. Goodson was deputized to a federal fugitive task force under the U.S. Marshals Service at the time. Although he had “an extraordinarily sordid past as a police officer,” Sarah Gelsomino, attorney for the Goodson family, testified,^[82] he had received no discipline and was not removed from the force or fired. “He has had no consequences for his actions when he chose to take the life of Casey Goodson,” said Ms. Payne.

 

247. Jacob Blake was brutalized on the day of his son’s birthday party. After pulling Mr. Blake over, the officers aggressively approached him. When Mr. Blake opened the car door and stepped out, the officers tasered him. As Mr. Blake walked around the car, Officer Rusten Sheskey grabbed him by his t-shirt and shot him seven times in the back at point blank range. The shooting of Mr. Blake was captured on cell phone video, in broad daylight, with onlookers all around.

 

248. Blake sustained injuries to his arm, kidney, liver, and spinal cord, and had nearly his entire colon and small intestines removed. He is paralyzed from the waist down. Not only was Mr. Blake traumatized, his children were also traumatized by witnessing the police shoot their father while they were sitting in the back of the vehicle.

 

 

 

9. RACIST POLICE VIOLENCE TRAUMATIZES AND DEVASTATES FAMILIES AND COMMUNITIES

 

“I’m asking you to let his legacy continue to build a brighter future from structural racism and police brutality . . . I’m asking and seeking justice for all Black and Brown men, women and children who have needlessly been killed by racism and police violence . . . Not only did my brother have the weight of three police officers on him, he had the weight of a nation plagued with centuries of systemic racism that stole his last breath.” —Philonise Floyd, brother of George Floyd^[83]

 

249. The Commissioners find that after victims of racist police violence are killed, their families and communities remain devastated. Many witnesses reported that Black people are killed in broad daylight both to intimidate communities and because officers don’t fear accountability. Wives are widowed, children grow up without fathers, and relatives suffer unimaginable pain. Some families are harassed by police even after their loved ones are killed. Generations of Black families are traumatized. Distrustful of police, Black people refrain from calling the police when they have an emergency.

 

Black Families Suffer Severe Trauma as a Result of Witnessing Racist Police Violence

 

250. Black people often suffer post-traumatic stress disorder and other forms of inter-generational psychological and emotional trauma from witnessing racist police violence.^[84] In case after case, the Commissioners heard family members of the victims testify about the trauma they suffered as a result of police killings of their loved ones and the lack of accountability the offending officers faced.

 

251. Dominic Archibald, the mother of Nathaniel Pickett II, who was gunned down by a police officer for doing nothing other than crossing the street in a crosswalk, testified,^[85] “He was my legacy, my faith in the present moment, and my hope for the future . . . In the final moments of the only life he had, my only child was stopped, beaten, and terrorized like a dog.” A retired Army officer and combat veteran who served in Afghanistan, Iraq, and Kuwait, Ms. Archibald noted, “We have more stringent rules of engagement and human rights requirements against the known enemy than law enforcement has in the streets of America.” Regarding the monetary judgment in the civil suit, she added, “You could never pay me for my child . . . Whatever comes is just a down payment on justice.” No criminal charges were brought against the officer.

 

252. Angelique Negroni-Kearse, Andrew Kearse’s wife, is raising seven children—four under age 10—without her husband. “This wasn’t just somebody just to throw away like his garbage and he’s nothing,” she testified.^[86] “He was somebody.” The grand jury refused to indict the officer who trapped Mr. Kearse in the back of a patrol car for 17 minutes while he pleaded for help 70 times before suffering a fatal heart attack.

 

253. Officers from the Fugitive Task Force in Atlanta, Georgia went to arrest Jimmy Atchison for a robbery that never happened. As Mr. Atchison remained on his knees with his hands up, the officer shot Mr. Atchison under his eye, killing him, and leaving his two young children fatherless.

 

254. Constance Malcolm, the mother of Ramarley Graham, worries about her other son, who witnessed an officer shoot his brother to death when he was six years old. She testified,^[87] “My son, I say he’s damaged because I don’t know. He’s 15. . . I don’t know what will happen if an officer tries to stop him, what [is] the outcome going to be. My scare is, I might have to go bury another young Black man, because of what he saw happened to his brother.”

 

255. Shortly after Juan May was shot and killed by an undercover off-duty police officer, Mr. May’s grandmother stopped eating because of her grief and died. The officer was never indicted by a grand jury. Ms. Jindia Blount, Mr. May’s sister, joined “Mothers Against Police Brutality” (MAPB), a U.S. non-governmental organization dedicated to ending racist police violence. Collette Flanagan, who founded the group, testified^[88] that MAPB has led to the end of chokeholds and no-knock warrants by Dallas police. Ms. Flanagan, whose son, Clinton Allen, was killed by an officer’s multiple gun shots, said, “We are suffering. This grief is so debilitating it has almost single-handedly destroyed our family.” The officer who killed Mr. Allen was never indicted.

 

256. Jasmine Roberson, the daughter of Antonio Garcia, whose father was shot in his car for doing nothing illegal, did not think involuntary manslaughter was a sufficient charge for the officer who killed her father. “Involuntary manslaughter means it was an accident,” she testified^[89]. “So it would be his word against a dead Black man’s. Nothing about his behavior was accidental. He intended to kill my father, and he was motivated to shoot based on my father’s race.”

 

Racist Police Violence Creates Generational Trauma for People of African Descent

 

257. No charges have been filed against the officers who hit, punched, choked, and tasered Manuel Elijah Ellis to death. “We’re broken, generations of us are emotionally tired. Our bodies are weathered, and it causes us physical illness. It causes us lifelong ailments and diseases. It causes us generational trauma that we are passing on,” Ms. Jamika Scott, a friend of the Ellis family, testified.^[90] “We are traumatized. We live in a constant state of PTSD, we are hyper vigilant, we are fearful, we are anxious, we are depressed,” she added. “It tears holes in families and communities. And it’s not just one family, it’s what happens to one family in this community, it happens to all of us. And it happens, it has lasting echoes throughout generations.”

 

258. Eric Garner’s mother, Ms. Gwen Carr, invoked other mothers who have lost sons to racist police violence. “There’s tens of thousands of us out here,” Carr testified^[91], “Some of us are high-profile, as they call it. But each case should be high profile. One case is as bad as the next. Some of the mothers, they can’t get out of bed.”

 

259. Nicole Paultre Bell, the wife of Sean Bell, testified: “Imagine living in a world where you must explain to your children their father, an unarmed bridegroom on the morning of his wedding, can be justifiably killed in a hail of 50 police bullets.”

 

260. Some victims’ relatives have been harassed by police after their loved ones were killed. The mother of Malcolm Ferguson, shot and killed by a plainclothes officer for hanging out with some friends, has been threatened and abused.^[92] More than a dozen officers raided her home, beat up and pepper sprayed her other son, and sexually assaulted her daughter as she held her child in her arms.

 

261. “Many Black families do not even trust the police department,” Aaron Campbell’s mother, Ms. Marva Davis, testified.^[93] The suicidal and compliant Mr. Campbell was shot and killed by officers. “I have talked to Black leaders, community leaders. And their message to the Black community is, do not call the police,” she added.

 

10. BLACK IMMIGRANTS ARE PARTICULARLY VULNERABLE TO SYSTEMIC RACIST POLICE VIOLENCE AND POLICE KILLINGS

 

“Due to racial discrimination, over-policing of Black communities, and invisibility within the public consciousness, Black immigrants face egregious conditions in the U.S., particularly within the nation’s immigration enforcement system.” —BAJI and NYU Law School Immigrant Rights Clinic, “The State of Black Immigrants”^[94]

 

Racism in the Criminal Legal System Unjustly Targets Black Immigrants

 

262. The Commissioners find that Black immigrants, who face disproportionate treatment in both the criminal and immigration systems, are particularly vulnerable to the systemic racist police violence that targets the African-American community.

 

263. Black immigrants account for nearly 10% of the United States’ Black population. Of the approximately five million Black individuals living in the U.S. who were born abroad, 3.7 million are non-citizens. “There is no evidence that Black immigrants commit crime at greater rates than other immigrants,” according to a 2016 report^[95] of the Black Alliance for Just Immigration (BAJI) and the NYU Law School Immigrant Rights Clinic. But while Black immigrants comprise only 7.2% of the U.S. non-citizen population, they account for 20.3% of immigrants who face deportation on criminal grounds.^[96] The BAJI-NYU report concluded, “The racism present in the criminal legal system spills over and informs the immigration enforcement system, and thus it naturally and unjustly targets Black immigrants at all stages of the process.”

 

264. Camilio Perez Bustillo, a professor of human rights, sociology, and psychology, as well as a Stanford University fellow, and former director of immigrant and refugee rights at the American Friends Service Committee, concurs. “Immigration policy in the United States has always been an expression of white supremacy and white nationalism,” Mr. Bustillo testified.^[97] Bustillo said that although racism and xenophobia were “made open and obvious” during the Donald Trump administration, this phenomenon is not likely to shift significantly under the current administration due to the U.S.’s inherent character “as a settle colonialist nation and its neo-colonial presence and interaction in Latin America.”

 

265. Black immigrants, who are subject to draconian immigration laws,^[98] are particularly vulnerable to the police violence that African-Americans “These laws, combined with ever-present aggressive policing in the majority-Black neighborhoods where they live, create an additional layer of punishment for Black immigrants in a legal system already skewed against them,” Ashoka Mukpo wrote for the ACLU.^[99]

 

 

Draconian Immigration Laws Compound the Harms to Black Immigrant Victims of Racist Police Violence

 

266. The Commissioners heard testimony about the racist police killings of three Black immigrants.

 

267. Ousmane Zongo, a wood maker from Burkina Faso, West Africa, was working on repairing African artifacts in a warehouse’s storage unit when he heard a police raid on an alleged counterfeit CD ring. Apparently thinking he was about to be robbed, Mr. Zongo, who had nothing to do with the counterfeit ring, ran through a maze of corridors of lockers until he reached a dead end. An officer chased Mr. Zongo, firing his semi-automatic pistol five times. Four bullets hit Mr. Zongo, who died in the hospital several hours later.

 

268. Momodou Sisay, a Black Gambian Muslim, was killed by a SWAT team whose officers fired three rounds (more than 200) of shots at Mr. Sisay’s car, killing him. The Gambian government is urging a “transparent, credible, and objective investigation.”

 

269. Botham Jean, an accountant born in St. Lucia, was eating ice cream in his apartment when an officer, through a “web of mistakes,” entered the apartment, allegedly believing it to be her own located one floor below, and shot and killed Mr. Jean. “What was she defending,” Ms. Allison Jean, Mr. Jean’s mother, asked,^[100] “as the only weapon he held was the color of his skin?”

 

 

 

LEGAL ACTORS ARE COMPLICIT IN POLICE VIOLENCE AND KILLINGS OF BLACK PEOPLE THROUGH QUALIFIED IMMUNITY AND OTHER FORMS OF SYSTEMIC IMPUNITY

 

11(a). PROSECUTORIAL MISCONDUCT AND GRAND JURY ABUSE

 

The Impunity Afforded to Offending Police Officers Leads to Continuing Police Brutalization of Black People

 

“I called for my brother to be helped, not for my brother to be tortured.” —Joseph Prude, brother of Daniel Prude^[101]

 

270. The Commissioners find that the brutalization of Black people is compounded by the impunity afforded to offending police officers, most of whom are never charged with a crime. Nearly all of those who do face charges are acquitted or escape time in custody. Since prosecutors rely on officers for investigation and testimony, they have an inherent conflict of interest when reviewing police misconduct. The grand jury is complicit by carrying out the prosecutor’s bidding and refusing to indict officers who then get away with murder.

 

271. Mapping Police Violence reported^[102] in 2020: “Officers were charged with a crime in only.one percent of all killings by police.” Attorney Daryl Washington, who represents the family of Botham Jean, cited statistics demonstrating police impunity for the killing of people of African descent. Washington testified^[103] that only 110 officers have been charged with murder or manslaughter. “Of all the shootings that that we have seen,” he said, “just five of those 110 officers have been convicted of murder, while 37 have been found guilty of lesser crimes. Out of the 42 victims, 25 were Black.”

 

272. The case of Daniel Prude, who was terribly brutalized and suffered brain damage due to the force with which the officer pressed his head into the sidewalk, is emblematic of the impunity enjoyed by officers who murder Black people in New York. On March 2, 2021, New York Attorney General Letitia James announced that none of the officers involved in the killing of Mr. Prude would face criminal charges. A grand jury Ms. James had convened to investigate the case declined to authorize the indictment of any of the seven officers. The Associated Press reported:

 

A grand jury’s decision not to indict officers involved in a fatal encounter with an unarmed Black man illustrates a hard reality for a special unit created to investigate deaths at the hands of police: Few of the probes overseen by New York’s attorney general have led to charges against officers…The Daniel Prude case marks the third time a grand jury has declined to bring charges in a case handled by the Special Investigations and Prosecutions Unit, created in 2015 amid an outcry over police skirting punishment in the deaths of unarmed Black people. The unit has yet to win a conviction. ^[104]

 

Prosecutors’ Conflict of Interest Further Encourages Police Impunity for the Killing and Maiming of Black People

 

273. Prosecutors have virtually unfettered discretion over whether to file criminal charges and which charges to bring against police officers.^[105] “Under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges and what charges to bring,” according to the Southern Poverty Law Center.

 

274. Sanford Rubenstein, attorney for the family of Mubarak Soulemane, a mentally ill 19-year-old whom officers shot seven times, killing him as he sat behind the wheel of a car, testified^[106] that, “local prosecutors need the police to make their cases [so] there is an existing conflict, or at least an appearance of conflict by the public with regard to having local district attorneys investigate police killings.”

 

275. Moreover, prosecutors who work closely with officers are the ones who present police misconduct cases to the grand jury. “That conflict of interest and perhaps political considerations as well,” attorney Tom Steenson testified^[107], “lead observers like myself to believe that prosecutors don’t pursue cases against the police with the same zeal that they do in similar cases against private citizens, leading to grand juries failing to indict police officers unless outside prosecutors are brought in to handle such cases.”

 

Collusion between Legal Actors Is Used to Cover up Torture and Other Forms of Racist Police Violence

 

276. Attorney Flint Taylor from the People’s Law Office in Chicago^[108]testified about the long-standing history of police use of torture against Black people in the United States. In particular, Mr. Taylor highlighted the ways in which federal and local law enforcement officials targeted Black movement activists, including the 1969 assassination of Fred Hampton and Mark Clark by Chicago police officers. Between 1972 and 1991, members of the Chicago police department used torture as a means of extracting false confessions from Black people accused of crimes. They used electric shock, mock executions, and mock suffocation with bags, among other methods. Through litigation, the systemic racist police torture was uncovered. Prosecutors were aware of the torture but nevertheless introduced the tainted confessions in court. Based on this evidence, prosecutors obtained death sentences and long prison terms against defendants who had been tortured. Recently, the city of Chicago acknowledged this ugly history and approved reparations for survivors of police torture in the city.^[109]

 

 

Grand Juries are Systematically Misused to Provide Police Officers with Further Impunity

 

277. There are two ways a prosecutor can bring felony charges against an individual. A preliminary hearing is a public proceeding in which a judge decides whether there is probable cause to send a person to trial. Or a prosecutor can ask a grand jury to make the probable cause determination and approve an indictment, which will then be the charging document at trial.

 

278. The grand jury, often called a “star chamber,” meets in secret and does the prosecutor’s bidding in nearly every case. “The secrecy of grand jury proceedings has led to a system of what is essentially unchecked prosecutorial discretion,” Rutgers law professor, Laura Cohen, testified. “In most situations, the grand jury is a kind of a rubber stamp.”^[110] Cohen is very concerned about “the role that bias or discrimination plays in the decision.” Prosecutors frequently refrain from taking cases to a grand jury to request an indictment. In some high-profile cases, prosecutors present a case to the grand jury but then sabotage the case.

 

279. No criminal charges were ever brought against the officers who killed Tamir Rice. The chief prosecutor who presented the case to the grand jury was “a defense attorney for the cops,” according to Tamir’s family and others involved in the case. The officers were allowed to prepare and make statements to the grand jury, but were not cross-examined.

 

280. A grand jury refused to indict the officers who killed Daniel Prude during his mental health crisis. The unarmed, cooperative Prude was nude in the middle of the road when police handcuffed him, forced a mesh hood over his head, and then pressed his head and chest into the pavement, causing fatal brain damage. Likewise, a grand jury did not indict the officers who killed Andrew Kearse, after keeping him in the back seat for 17 minutes as he repeated, “I can’t breathe” several times and suffered a heart attack.

 

281. Attorney Benjamin Crump, who represents the family of Michael Brown, testified,^[111] “We have the grand jury system in the United States of America, where when people are charged with a crime that could be considered a felony [with] imprisonment more than 25 years, they have to go before the grand jury. Where Black people in America often are charged with those crimes, we call it the school to prison pipeline, the prison industrial complex. Where in this situation when you had the Black victim lying dead on the ground, and there’s a white police officer, they just changed all the rules. …The Grand Jury proceedings allowed the killer of Michael Brown to go testify before the grand jury, and he was not cross examined at all.”

 

 

11(b) DESTRUCTION OF EVIDENCE

 

There Is an Alarming Pattern of Manipulation of Evidence, Cover-ups, Obstruction of Justice, and Collusion between Various Arms of Law Enforcement

 

“Until the day I die, this is what I’m going to do. We know that the system, they kill us twice. First, the police, they murder in broad daylight, they murder us in the night when they don’t think anyone’s looking, then they murder us in the newspaper, they bring out any little thing that they think that can criminalize us.” —Gwen Carr, mother of Eric Garner^[112]

 

“The first police report that came out on George Floyd was that he died of natural causes, while he was assaulting police, and resisting arrest” —Benjamin Crump, attorney for George Floyd^[113]

 

 

282. In case after case, the Commissioners find proof of an alarming pattern of manipulation of evidence, cover-ups, obstruction of justice, and collusion between various arms of law enforcement. Police officers and their unions, prosecutors, coroners. and “independent medical examiners” are accomplices in the service of impunity for police who kill Black people. The Commissioners also find a troubling pattern of police creating false narratives and smear campaigns directed at victims and their families.

 

Cover-ups, Obstruction of Justice, and Manipulation and Destruction of Evidence Provide Impunity for Police Killings against People of African Descent

 

 

283. The Commissioners find a disturbing pattern of destruction, loss and manipulation of evidence, and obstruction of  justice in connection with the unjustified killings of unarmed persons of African descent among the 44 cases heard. The egregiousness of the violations bears noting and its presence in multiple cases heard by the Commission is cause for concern.

 

284. For example, in the case of Henry Glover, a man shot outside a mall loading dock, the police sought to destroy evidence and desecrate the victim’s lifeless body by driving a car containing his corpse into a levee and setting it on fire. Three officers were convicted of filing a false and misleading police report with the intent to impede and obstruct the investigation of Mr. Glover’s death, though their convictions were later overturned.

 

285. Eighteen-year-old Michael Brown was shot 12 times in broad daylight, his body left in the street for four hours to intimidate the Black community of Ferguson, Missouri. The assailant police officer was permitted to bag his own gun and wash the victim’s blood off his hands, thus destroying evidence. The Commissioners heard evidence in the case of Patrick Dorismond, a man killed by police officers for refusing the advances of an undercover officer seeking to buy drugs. A gunpowder residue test and other tests relevant to building a case against the officer were “lost” by the police department. In the case of Jayvis Benjamin, the district attorney’s office attempted to manipulate the video recording of Mr. Benjamin’s murder, as the unaltered video showed the officer shooting an unarmed, defenseless Black man.

 

286. The Commissioners further heard evidence of official procedures that invited such obstruction and manipulation. Police suspects benefit from protocols whereby the crime scene is not secured. Before giving a statement, officers are permitted extra time to confer with their union and colleagues to generate agreed-upon narratives. In the case of Jordan Baker, David Owens, attorney for the family, testified,

 

Well, Officer Castro handcuffs Jordan and leaves him to die on the ground. He gets in his police car and waits for his attorney to show up. Then homicide investigators are calling from the city of Houston. The prosecutor’s office from Harris County are called, the internal affairs from the Houston Police Department. They all show up. Officer Castro has a conversation with his attorney about what he wants to say happened. And then they do a walkthrough of the entire thing, what’s called a ring.^[114]

 

287. Malcolm Ferguson was killed by a bullet to the temple. The officer claimed that his gun fired accidentally, but the medical examiner said the barrel of the gun was touching Ferguson’s temple when it went off. The officers were allowed 48 hours after the killing to speak with other officers and get their stories straight. Furthermore, officers and their unions often have access to body camera footage long before family members. Such access invites cover-up efforts and grants police officers access to the evidence against them long before charges are filed and official narratives fixed. In the case of Daniel Prude, the police union received the body camera videos and other evidence within two to three days after the accident, while the Prude legal team did not have access to the footage until six months after the killing.

 

There Is a Pattern of Unsupportable Exculpatory Medical Findings in Cases of Unlawful Restraint

 

288. In addition to the misconduct of police, the Commissioners heard evidence that medical examiners and coroners worked in tandem with the police to obstruct justice. Particularly in cases of unlawful restraint, coroners and medical examiners have endorsed demonstrably false causes of death to exonerate police officers and minimize the role of excessive force in the victim’s death.

 

289. “About a decade ago, the National Association of Medical Examiners, which is a professional association for forensic pathologists and medical examiners, surveyed their membership. And about 1 in 5 reported being pressured by a public official, which included politicians and also police, to change cause-of-death determinations or manner-of-death determinations,” Harvard health researcher Justin Feldman told Mother Jones.^[115]

 

290. The prosecutor in the Linwood Lambert case argued that Mr. Lambert died from “excited delirium.” This false diagnosis was accompanied by improper oversight of the forensic pathologist by a Virginia State police official with no medical training or knowledge. The resulting autopsy concluded that Mr. Lambert died of “acute cocaine intoxication” due to trace amounts of the substance in his system. Crucially, in reaching a conclusion that exculpated the officers, the forensic pathologist did not take into account that Mr. Lambert was tasered more than 20 times, nor did she review the video of the incident before conducting the autopsy.

 

291. Despite the video depicting George Floyd’s gruesome killing by asphyxiation for nearly nine minutes, the Hennepin County Medical Examiner made no physical findings that supported a diagnosis of traumatic asphyxia or strangulation. Tashii Farmer Brown was chased and killed by police in a Las Vegas casino by officers from whom he sought help after he feared he was being followed. Defense witnesses blamed his death on an enlarged heart rather than the prolonged chokehold that caused him to become unresponsive. Tyrone West was beaten by seven officers, one of whom stood on his back and neck for five minutes. The independent review board found the cause of death to be extreme heat that day, dehydration, and a medical issue aggravated by the encounter with the police. They did not include the beating and chokehold among the causes of death.

 

292. Accordingly, the Commissioners find evidence of a pattern of complicity in official cover-ups by state examiners and experts who are required to make independent findings.

 

Police Departments Concoct False Narratives Regarding Incidents of Police Violence against People of African Descent

 

293. In addition to evidence of obstruction, the Commissioners heard evidence from family members and their attorneys who testified that police departments had concocted false narratives directed not at their own actions but at those of the victim, many of which were subsequently discredited by surveillance and cell phone recordings of the incident, as well as other evidence.

 

294. The Commissioners also received evidence in the case of Manuel Elijah Ellis, a man killed after an unlawful stop. Police created a false narrative that he was trying to get into cars, which was contradicted by a bystander’s video. In the case of Ramarley Graham, a young man shot in the presence of his grandmother and six-year-old brother, the New York Police Department (NYPD) released footage of a fleeing man dressed in white, whom they claimed was Mr. Graham, despite the fact that Mr. Graham was dressed in black, and surveillance tape showed him walking into his home. After the killing, the NYPD released a false narrative to the press that Mr. Graham was under surveillance for selling drugs. Tashii Farmer Brown was falsely criminalized as trying to carjack a truck, a narrative contradicted by video evidence. Similarly, in the case of Marquise Jones, a man shot in the back while walking away from a minor vehicular accident, the police claimed self-defense.

 

Police Departments Employ Stock Justification Narratives Such as “Reaching for Waistband”

 

295. The Commissioners find that police departments have employed a stock response intended to manufacture justification for use of force.

 

296. Specifically, the Commissioners heard testimony in multiple cases during which police claimed that the victims were “reaching for their waistband” as justification for the police officers’ perception of a threat. Aaron Campbell was shot in the back during a mental health call. After consulting with his union representative and attorney, the officer changed his story and claimed he saw Mr. Campbell’s hand reach below his waistband into his pants. Similarly, in the case of Michael Brown, while mobile phone footage shows that he was shot while his hands were up, the officer subsequently stated that Mr. Brown reached for his waistband—a claim the officer did not raise with his supervisor immediately after the incident.

 

297. The case of Jordan Baker, a young father killed by a Houston police officer while riding his bike in a strip mall, illustrates the use of the waistband justification by police to excuse the use of excessive force against communities of color. Attorneys for Mr. Baker’s family presented evidence that the “waistband” theory of perceived threat used against Mr. Baker was utilized in 50 out of 227 killings of civilians by the Dallas police over a three-year period. But such justification was used only against Black and Hispanic civilians, never against whites. Overwhelmingly, when this excuse was used, the civilian was unarmed.^[116]

 

298. Thus the Commissioners find, within the Dallas Police Department and elsewhere, “reaching for the waistband” formed part of a consistent and deliberately false narrative by police departments and unions to justify unlawful killings of people of color.

 

Police Departments Engage in Defamatory False Claims about Victims and Their Family Members

 

299. The Commissioners find that in addition to disseminating false narratives to manufacture probable cause or justification for their use of force, police departments, aided by municipalities, repeatedly resorted to smear media campaigns and efforts to discredit victims and their families.

 

300. A particularly telling example of this practice is the case of Patrick Dorismond, who was killed by undercover officers after an incident of racial profiling when he rebuffed an undercover officer’s request to buy drugs. After the killing, then-mayor of New York, Rudy Giuliani, falsely claimed that Mr. Dorismond was convicted for crimes of violence, and leaked his sealed juvenile records to the press. Giuliani went on television to smear Mr. Dorismond, stating, “He’s no altar boy.” In fact, Mr. Dorismond had been an altar boy in his youth.

 

301. These false smear narratives extend to family members and others who advocate for justice and accountability on behalf of victims. In the case of Clinton Allen, once the city realized that Mr. Allen’s mother was bringing unwanted attention to the city by talking to other families whose children had been killed by police officers, the police and the local newspaper mounted a campaign to falsely paint Mr. Allen as  a crazed drug user who attacked a cop while high on PCP. After the killing of Ramarley Graham in an unwarranted search of his home, the NYPD released a false narrative to the press that Graham was under surveillance for selling drugs.

 

302. Police portrayed Jayvis Benjamin as a car thief while he was driving his mother’s car. When Mr. Benjamin’s mother refused to accept that her son was a criminal who deserved to be shot right after being involved in a car accident, she was labeled an “angry Black woman.” In an especially egregious case heard by the Commissioners, retaliation against the family was not limited to smears, but took the form of physical and sexual violence and intimidation against family victim advocates. In the case of Malcom Ferguson, the NYPD threatened and abused Ferguson’s mother, Juanita Young. More than a dozen officers raided her home in 2009, beat and pepper sprayed her other son, James Ferguson, and sexually assaulted her daughter, Saran Young, while she held a child in her arms.

 

11(c) SYSTEMIC IMPUNITY: LACK OF OVERSIGHT OF POLICE

 

Internal Police Department Practices Aid and Abet the Systemic Impunity of Law Enforcement Officers

 

“I hunt people. It’s a great job. I love it . . . I learned long ago, I gotta throw the first punch.” —Officer Jason Meade, who killed Casey Goodson^[117]

 

303. The Commissioners find that internal police department practices aid and abet the systemic impunity that law enforcement officers enjoy. Officers cover up for each other in a practice known as the “blue wall of silence.” Police unions help their members conceal their misconduct. Police departments conduct insufficient background checks before hiring new officers. And when police internal affairs investigations do occur, they rarely result in accountability for officers who kill Black people.

 

Police Departments Dispatch and Hire Officers with a History of Excessive Force

 

304. Officers with a history of excessive force continue to be dispatched, and are subsequently hired by, police departments.^[118] Before he killed George Floyd by pressing his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds, Officer Derek Chauvin had more than a dozen complaints^[119] filed against him, none of which had resulted in any disciplinary action. In one case, Chauvin pulled a non-resisting woman to the ground and knelt on her as she pleaded, “Don’t kill me.” In another case, the victim asserted that Chauvin, “Choked me out on the ground,” but the complaint against the officer was dismissed.

 

305. Ten years before he killed Damian Daniels, who was experiencing a mental health crisis, Officer Jonathan Rodriguez had shot another unarmed civilian during a mental health crisis, and had also been criminally charged for a domestic dispute. Officer Clark Staller had just gotten off probationary suspension for using his squad car to run over a fleeing suspect and for falsifying a police report when he killed the non-threatening Clinton Allen with seven shots fired at close range. He was put on administrative duty for nearly two years, but ultimately kept his job.

 

306. The officer who killed Barry Gedeus with three shots to the rear of his body had 84 separate use of force complaints filed against him over the course of his 14-year career. Those complaints were unusual for the explicit violence he used in arresting, apprehending, and interviewing suspects.

 

The “The Blue Wall of Silence” Prevents Accountability for Offending Officers

 

307. Jonathan Moore, attorney for the Estate of Eric Garner^[120] and Derek Sells, attorney for the Estate of Alberta Spruill,^[121] testified about the “blue wall of silence,” also called the “blue code of silence” and the “thin blue line.” It is standard operating procedure that officers who witness misconduct by their colleagues do not come forward but instead help them cover up their crimes, often aided and abetted by prosecutors. The all-too-common practice prevents offending officers from facing accountability for their actions.

 

Police Unions Facilitate Impunity of Officers

 

308. Police union representatives often protect officers involved in violent incidents by providing them with false narratives to cover up their culpability. Unions establish procedural protections for officers involved in police shootings. This generally includes a cooling-off period that allows officers to meet with their union representatives and legal team before officially submitting a statement. The officer who killed Casey Goodson by shooting him in the back with three assault rifle bullets provided a statement two weeks after he had consulted his lawyers and members of the police union. He has not been charged with murder or dismissed from his job.

 

309. Officer Amber Guyger killed Botham Jean while he was eating ice cream in his apartment. She claimed to have mistakenly entered Mr. Jean’s apartment thinking it was hers and then shot him. After the shooting, Guyger was allowed to talk to police union representatives. Daryl Washington, attorney for the Jean family, testified^[122] about “how powerful these police unions are. And they basically told Amber Guyger what to do and what to say,” Mr. Washington added. “She was given that protection, that’s how police officers are treated when there’s an officer involved shooting.”

 

310. The police union got the body camera footage two or three days after Daniel Prude’s murder. It took the Prude legal team six months — and the filing of several lawsuits under the Freedom of Information Act — to obtain the footage.

 

311. Attorney Derek Sells represents the family of Tarika Wilson, who was shot and killed by an officer with a semi-automatic rifle as she held her 14-month-old baby. Mr. Sells testified^[123] that the union leadership thinks “there’s a war, that the police are at war with the general public, that they’re under attack . . . And so they want to try and stick together. . . And so therefore, we have a culture of poisoned police officers. And it’s maintained by the union, the union forces, essentially, these police officers to stick together.”

 

312. One police officer had participated in three officer-involved shootings of unarmed individuals, two of whom were of African descent. After his third shooting, the officer was named as a police union representative who advised individuals after officer-involved deaths. He was recorded helping another officer present a false narrative for his killing of Tashii Farmer Brown through infliction of tasering, beating, and an unauthorized chokehold.

 

313. The officer who killed the unarmed, suicidal Aaron Campbell changed his story after consulting with his police union representative. He then claimed he saw Mr. Campbell’s hand reach below his waistband and into his pants before shooting him with an AR-15 semi-automatic assault rifle. Although the police’s internal investigation determined the officer had violated policies and training and directed his firing, the arbitrator reversed that decision and ordered him reinstated with back benefits.

 

314. Police union contracts erect obstacles to officer accountability for misconduct.^[124] They include provisions that disallow misconduct complaints that are submitted too long after the incident or if the investigation is taking too long to complete. They prevent officers from being interrogated immediately after an incident. Officers are granted access to information that civilians and their attorneys are not allowed before interrogation. Police unions prevent information about an officer’s record of misconduct from being recorded or kept in the officer’s personnel file. Unions also limit the disciplinary consequences officers face or limit the authority of civilian oversight boards to hold officers accountable.

 

The Police Cannot Be Trusted to Police Themselves through  Internal Affairs Investigations

 

315. Police departments have Internal Affairs (IA) bureaus to deal with complaints about individual officers. IA investigators are supposed to conduct investigations of police misconduct allegations. In many cases, however, they refrain from finding wrongdoing by officers. These bureaus often lack transparency so the public is not aware of whether they did mount an investigation, and if they did, what determination they made.

 

316. In Columbus, Ohio, the internal police investigation is conducted by a Critical Incident Review Team, which attorney Sarah Gelsomino testified^[125], “just immediately consider the shooting to be justified.” Their policy is that “the officer who shoots is not to be treated as a suspect and should never feel that they are a suspect.” She added, “All of those investigations end up with a justified finding. It is a kangaroo court kind of investigation. And it is not a true investigation. However, for three days, the Columbus division of police held that scene and was in charge of the investigation” in Mr. Goodson’s case.

 

317. Attorney Steve Vaccaro, who represents the family of Shereese Francis, raised concerns about investigations conducted by the NYPD’s Internal Affairs Bureau (IAB) of police-involved shootings. Although the IAB is supposed to conduct independent investigations, their outcomes are designed to serve the interest of police officers and police unions. The IAB is a biased system that often manipulates witness accounts to present a narrative that exonerates the officer(s) in question. For example, the IAB report on Ms. Francis’s death portrayed her as an aggressive individual whose behavior prevented four officers from using de-escalation techniques to safely take her to a hospital. The report stated that she did not display signs of trauma, although evidence indicated that she appeared to be in a delusional state while being beaten and suffocated into submission.

 

318. “The Internal Affairs Bureau, from what I’ve seen,” Mr. Vaccaro testified,^[126] “is much more geared towards protecting the institutional interests and posture and reputation and liability of the police department than it is in trying to get at the facts of the truth and having some sort of an independent neutral investigation of misconduct by the police.”

 

319. Attorney Nana Gyamfi, president of the National Conference of Black Lawyers, testified that^[127] families are not told about the results of internal complaints against police officers, which are treated as personnel matters throughout the country. “They’re considered employment matters, and not the public safety matters that they actually are; that needs to change,” she said.

 

320. The Baltimore Police Department conducted an internal investigation into the killing of Tyrone West, who stopped breathing after officers tasered him, pepper sprayed him in his face and neck, beat him, and stood on his back and neck for five minutes. Eight officers were placed in administrative positions as a result, but city prosecutors concluded there was insufficient evidence to charge any of them.

 

321. From 2015 to 2019, the Baltimore Police Department received more than 13,000 complaints of police misconduct, including 18 complaints filed against the officer who killed Mr. West. Black people accounted for 73% of all complaints, but only seven percent of those complaints were sustained, Christopher Lawrence testified.^[128]

 

322. The Commissioners find that the police cannot be trusted to police themselves. Departments hire and retain officers with histories of using excessive force. Internal affairs investigations whitewash police violence and police unions help offending officers create false narratives to cover up their misconduct.

 

11(d) QUALIFIED IMMUNITY

 

Victims’ Families Face Extraordinary Obstacles to Holding Officers Accountable for the Killing of Their Family Members

 

“[A]s it stands right now, police officers are able to do whatever they want to do. And the city can hide behind, oh, qualified immunity, which in fact, is a made up all by the court system. And they’re not held accountable”. —Anthony Eiland, attorney for Juan May

 

“[T]he judge dismissed the lawsuit [on] December of 2017, basically ruling that the doctrine of qualified immunity prevented either the city or the police officer from being sued. … So this is where we currently stand today, on January 21, 2021, eight years after this woman lost her son. A mother has lost her child. The community has lost a bright young man with a valuable future. The Benjamin family has lost a brother, people have lost a friend. And we sit here wondering how does this happen?” —Patrick  Megaro, attorney for Jayvis Benjamin^[129]

 

323. In case after case, the Commissioners heard evidence that victims’ families faced extraordinary obstacles to holding officers accountable for the killing of their family members, and to seeking monetary damages for family members, spouses, and dependents of their killed loved ones. As discussed by expert witness Penny Venetis, Dickinson R. Debevoise Scholar at Rutgers Law School where she is a Clinical Professor of Law and the Director of the International Human Rights Clinic, the primary obstacle to securing civil remedies is qualified immunity, a judicially created doctrine that shields government officials from personal liability for constitutional violations in actions for money damages.^[130] Victims and their families can bring actions for constitutional violations by state officials under 42 U.S.C. § 1983, a federal law originally enacted in 1872 to provide redress to Black victims of Ku Klux Klan violence.^[131] They can also sue federal officials under the Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.^[132] But in an overwhelming number of cases heard by the Commissioners, families faced this affirmative defense, barring recovery even where courts find that the state or federal officials committed unlawful acts.

 

324. Qualified immunity was announced by the Supreme Court in Harlow v. Fitzgerald,^[133] which held that state and federal officials are immune from money judgment if “the law at that time was not clearly established” as the official could not “fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”

 

325. As a recent U.S. District Court decision explained, “judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.”^[134]

 

326. The district court continued, “The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not ‘clearly established.’ This ‘clearly established’ requirement is not in the Constitution or a federal statute. The Supreme Court came up with it in 1982. In 1986, the Court then ‘evolved’ the qualified immunity defense to spread its blessings ‘to all but the plainly incompetent or those who knowingly violate the law.’ It further ratcheted up the standard in 2011, when it added the words ‘beyond debate.’”^[135]

 

327. As expert witness Professor Venetis explained, qualified immunity has rendered redress under 42 USC 1983 nearly unattainable, and its application is contrary to the legislative intent and the text of the statute. “Whereas the statute was enacted to protect victims, with the reading of qualified immunity into the statute it really protects the people who violate the law—it gives them a free pass[…] That is not what Congress intended when they passed Section 1983. It was a victim-centered statute but the way that the courts interpret the statute today allows for brazen violation of the constitution and police brutality,” ^[136] she testified.

 

328. The case of Tashii Farmer Brown is illustrative. Mr. Brown was savagely attacked, repeatedly tasered, and choked by one officer as three officers stood by, taking no action to save Mr. Brown’s life even as they voiced their opposition to the attack. Due to qualified immunity, the family of Mr. Brown cannot pursue damages against these officers on their constitutional claims as it was not clearly established that allowing the killing was unreasonable. Similarly, in the case of Juan May, an off-duty police officer who, along with Mr. May, was a guest at a birthday party, got into an altercation with the unarmed Mr. May. The officer went to his car, retrieved his gun, and shot and killed Mr. May. In barring the family’s claim under qualified immunity, the court found the officer’s act of killing Mr. May was not unreasonable.

 

329. Indeed, not only did witnesses testify that qualified immunity is a barrier to damages, but they also crucially stated that the doctrine’s effect was to create a culture of impunity, and invite unfettered abuses in the absence of appellate court rulings specifically outlawing a particular practice. As attorney Kyle Brazile explained to the Commissioners, qualified immunity works against “the type of accountability that pushes conduct to become reasonable” by applying a “clearly established” standard that is slow to evolve in appellate court rulings.^[137] Patrick Megaro, attorney for the family of Jayvis Benjamin, testified, “the sooner that we get rid of qualified immunity, the sooner that we hold people accountable for their actions, those bad motives, those bad intentions, those people will not be able to do what they want to do. And even those people who may not have that in their hearts, but develop it over a set of time as they become desensitized to violence, desensitized to brutality, those situations will decrease as well.”^[138]

 

330. As qualified immunity was roundly condemned by victims and their families, the Commissioners heard testimony from attorney Michael Avery that some states had moved to eliminate such immunity, citing a bill passed in Colorado and one pending in New Mexico.^[139] Mark Arons, attorney for the family of Mubarak Soulemane, informed the Commissioners that while federal legislation was previously pending in the House of Representatives, it has yet to be reintroduced.^[140]

 

331. Qualified immunity was not the only barrier to accountability raised in the testimony of Professor Venetis. She further noted that individual officer liability under 42 USC 1983 was particularly important due to a doctrine that bars suits against municipalities for acts of police officers unless the bad acts were done pursuant to a government custom or policy under Monell v. Dep’t of Social Servs. of New York..^[141] Given the difficulty of meeting the Monell standard to hold the municipality accountable, individual officer liability takes on special importance. Further, even where qualified immunity does not apply and the officer is required to pay monetary damages to the victim’s family, cities indemnify officers, shielding them from the financial consequences of their actions.  

 

332. Thus, the Commissioners find that qualified immunity amounts to condonation of brutal police violence against persons of African descent, and creates a culture of impunity whereby offenders are not held accountable, and families are left without redress. They further find the Monell doctrine of municipal liability and indemnification of officers pose additional obstacles to accountability.

 

 

 

 

^[1] Video and Transcript: Hearing on the Case of Momodou Lamin Sisay, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb. 5, 2021), https://inquirycommission.org/video-and-transcript-momodou-lamin-sisay-hearing-friday-february-5-international-commission-of-inquiry/ (hereinafter “Case of Momodou Sisay”).

^[2]  Video and Transcript: Hearing on the Case of Ramarley Graham, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 22, 2021), https://inquirycommission.org/video-and-transcript-ramarley-graham-hearing-friday-january-22-international-commission-of-inquiry/ (hereinafter, “Case of Ramarley Graham”).

^[3]  Video and Transcript: Hearing on the Case of Michael Brown, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 29, 2021), https://inquirycommission.org/video-and-transcript-michael-brown-hearing-friday-january-29-international-commission-of-inquiry/ (hereinafter “Case of Michael Brown”).

^[4]  Video and Transcript: Hearing on the Case of Tyrone West, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 30, 2021), https://inquirycommission.org/video-and-transcript-tyrone-west-hearing-saturday-january-30-international-commission-of-inquiry/ (hereinafter “Case of Tyrone West”).

^[5]  Cheryl W. Thompson, Fatal Police Shootings on Unarmed Black People Reveal Troubling Patterns, National Public Radio (Jan. 25, 2021), https://www.npr.org/2021/01/25/956177021/fatal-police-shootings-of-unarmed-black-people-reveal-troubling-patterns.

^[6] Jordan Blair Woods, Policing, Danger Narratives, and Routine Traffic Stops, 117 Mich. L. Rev. 635 (2019) (the rate for an assault that results in serious injury to an officer was only 1 in every 361,111 stops).

^[7] Ryan Gabrielson, Eric Sagara, & Ryann Grochowski Jones, Deadly Force, in Black and White, ProPublica (Oct. 10, 2014), https://www.propublica.org/article/deadly-force-in-black-and-white.

^[8]  See generally Terry, 392 U.S. 1.

^[9]  See American Psychology Association, People See Black Men as Larger, More Threatening Than Same Sized-White Men (Mar. 13, 2017), https://www.apa.org/news/press/releases/2017/03/black-men-threatening.

^[10]  See Joel Schwarz, Blacks more likely to be shot than whites even when holding harmless objects, University of Washington News (July 8, 2003), https://www.washington.edu/news/2003/07/08/blacks-more-likely-to-be-shot-than-whites-even-when-holding-harmless-objects/; See also Washington University in St. Louis, Mere Presence of a Black Face Can Lead People to Mistake Objects For Weapons More Often, Study Says, ScienceDaily (May 21, 2001), https://www.sciencedaily.com/releases/2001/05/010521072157.htm; See also B. Keith Payne, Weapon Bias: Split-Second Decisions and Unintended Stereotyping, SAGE Journals (Dec. 1, 2006), https://journals.sagepub.com/doi/10.1111/j.1467-8721.2006.00454.x.

^[11]See Mary Beth Oliver, African-American Men as “Criminal and Dangerous”: Implications of Media Portrayals of Crime on the “Criminalization” of African-American Men, 7 J. African Am. Studies 3-18 (Sept. 2003), https://www.jstor.org/stable/41819017?seq; See also Devon Carbado & Patrick Rock, What Exposes African-Americanss to Police Violence? 51 Harv. Civ. Rts. Civ. Liberties L. Rev. 159 (2016), https://harvardcrcl.org/wp-content/uploads/sites/10/2009/06/HLC104_crop.pdf.

^[12] Video: Andrea J. Ritchie, Expert Presentation, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 21, 2021), https://inquirycommission.org/?s=andrea+ritchie (hereinafter “Andrea Ritchie Expert Presentation”).

^[13]Priscilla A. Ocen, (e)Racing Childhood: Examining the Racialized Constructions of Childhood and Innocence in the Treatment of Sexually Exploited Minors, 62 UCLA L. Rev. 1586 (2015).

^[14] Erika Harrell, Ph.D. & Elizabeth Davis, Contacts Between Police and the Public, 2018 – Statistical Tables, Bureau of Justice Statistics, U.S. Department of Justice (Dec. 2020),  https://www.bjs.gov/content/pub/pdf/cbpp18st.pdf.

^[15] This is a “racial calculus” that devalues Black lives and remains in the “afterlife of slavery” which includes “skewed life chances, limited access to health and education, premature death, incarceration, and impoverishment.”

^[16]  Olivia B. Waxman, How the U.S. Got Its Police Force, TIME (May 18, 2017), https://time.com/4779112/police-history-origins/ (“during Reconstruction, many local sheriffs functioned in a way analogous to the earlier slave patrols, enforcing segregation and the disenfranchisement of freed slaves”)

^[17]  See Testimony of Attorney Jaiteh, in Case of Momodou Sisay, supra (some argued that explicit racial animus was responsible for many of the racist practices of law enforcement agencies, citing FBI reports of white supremacist infiltration of U.S. law enforcement agencies).

^[18] ACLU, Racial Profiling: Definition, https://www.aclu.org/other/racial-profiling-definition, (“racial profiling” refers to the discriminatory practice by law enforcement officials of targeting individuals for suspicion crime based on the individual’s race, ethnicity, religion or national origin. Criminal profiling is the reliance on a group of characteristics that police believe to be associated with crime).

^[19] Whren, 517 U.S. at 813.

^[20] Testimony of Christopher Lawrence, Law Student, in Case of Tyrone West, supra

^[21] Darwin Bond Graham, Black people in California are stopped far more often by police, major study proves, The Guardian (Jan. 3, 2020), https://www.theguardian.com/us-news/2020/jan/02/california-police-black-stops-force (a study of traffic stops in California found that officers were more likely to stop Black motorists and to use force against them).

^[22] Juliet Linderman, New autopsy: man in police struggle died of asphyxiation, Associated Press (Dec. 14, 2016), https://apnews.com/article/f5efce80091645928c6f34298de9142e.

^[23] Wendy Sawyer, Ten key facts about policing: Highlights from our work, Prison Policy Initiative (June 5, 2020), https://www.prisonpolicy.org/blog/2020/06/05/policingfacts/ (“[m]ost policing has little to do with real threats to public safety: the vast majority of arrests are for low-level offenses. Only 5% of all arrests are for serious violent crimes.”)

^[24] George L. Kelling & James Q. Wilson, Broken Windows: The police and neighborhood safety, The Atlantic (Mar. 1982), https://www.theatlantic.com/magazine/archive/1982/03/broken-windows/304465/.

^[25] See Id.

^[26] Jeff Asher & Ben Horowitz, How Do the Police Actually Spend Their Time?, The New York Times (June 19, 2020), https://www.nytimes.com/2020/06/19/upshot/unrest-police-time-violent-crime.html.

^[27] Devon W. Carbado, Terry v. Ohio’s Pathway to Police Violence, 64 UCLA L. Rev. 1508 (2017) (hereinafter “Pathway to Police Violence”).

^[28]  See Terry, 392 U.S. at 21; Rodriguez v. United States, 575 U.S. __ (2015) (held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”).

^[29]  Video and Transcript: Hearing on the Case of Eric Garner, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 18, 2021), https://inquirycommission.org/video-and-transcript-eric-garner-hearing-monday-january-18-international-commission-of-inquiry/ (hereinafter “Case of Eric Garner”).

^[30] A consent decree is a court-ordered agreement after a major Department of Justice investigation designed to correct long-standing unconstitutional practices in police departments.

^[31] Although officers often cite attempts to flee as another basis for suspicion that a crime has been committed, the Massachusetts Supreme Court recently found that running from an officer cannot be the sole basis for suspicion. See Commonwealth v. Warren, 475 Mass. 530 (2016). Instead, the Court observed that Black people have good reason to run from the police:

 

Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for Black males in the city of Boston, a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.

 

Id. at 540.

^[32] Case of Eric Garner, supra.

^[33]  U.S. Const. amend. IV.

^[34]  See, e.g., Video and Transcript: Hearing on the Case of Alberta Spruill, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 22, 2021), https://inquirycommission.org/video-and-transcript-alberta-spruill-hearing-friday-january-22-international-commission-of-inquiry/ (hereinafter “Case of Alberta Spruill”).

^[35] Wilson v. Arkansas, 514 U.S. 927 (1995).

^[36] Missouri v. McNeely, 569 U.S. 141 (2013).

^[37] Case of George Floyd, supra.

^[38] UN For Human Rights Office of the High Commissioner, Guidance on Less Lethal Weapons in Law Enforcement, 31 (Sep. 2020).

^[39] Id. at 33.

^[40] Video and Transcript: Hearing on the Case of Patrick Warren, Sr., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 27, 2021), https://inquirycommission.org/video-and-transcript-patrick-warren-sr-hearing-wednesday-january-27-international-commission-of-inquiry/.

^[41]   See Linda So, Black Americans disproportionately die in police Taser confrontations, REUTERS (June 15, 2020), https://www.reuters.com/article/us-minneapolis-police-protests-tasers-in/black-americans-disproportionately-die-in-police-taser-confrontations-idUSKBN23M16E (last accessed Mar. 9, 2021).

^[42]  Video and Transcript: Hearing on the Case of Richie Harbison., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 29, 2021), https://inquirycommission.org/video-and-transcript-richie-harbison-hearing-friday-january-29-international-commission-of-inquiry/ (hereinafter, “Case of Richie Harbison”).

^[43] Id.

 

^[44] Case of George Floyd, supra.

 

^[45] Case of Kayla Moore, supra.

^[46]  Video and Transcript: Hearing on the Case of Freddie Gray., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 18, 2021), https://inquirycommission.org/video-and-transcript-freddie-gray-hearing-monday-january-18-international-commission-of-inquiry/.

^[47] Id.

^[48] Harriet A. Washington, Medical Apartheid: The Dark History of Medical Experimentation on Black Americans from Colonial Times to the Present (2006).

^[49] The Andrew Kearse Act was signed into law in New York State in June 2020. It requires law enforcement officers to seek care for any person in their custody who is experiencing a medical episode or mental health crisis. If they fail to do so, officers can now be held civilly liable. At the federal level, The Andrew Kearse Accountability for Denial of Medical Care Act, which is currently pending in the U.S. Congress, would:

• Hold federal law enforcement officials criminally liable when they fail to obtain or provide medical care to individuals in their custody who are experiencing medical distress;
• Require training for federal law enforcement officials in assisting individuals in medical distress; and
• Direct the Inspectors General of the agencies that employ federal law enforcement officers to investigate potential violations and refer them to the Department of Justice for prosecution.

^[50]  Video and Transcript: Hearing on the Case of Damian Daniels., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 29, 2021), https://inquirycommission.org/video-and-transcript-damian-daniels-hearing-friday-january-29-international-commission-of-inquiry/.

^[51] Sarah Maslin Nir, Jonah E. Bromwich, & Benjamin Weiser, A Special Unit to Prosecute Police Killings Has No Convictions, The New York Times (last updated Feb. 27, 2021),

^[52] Id.

^[53] Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law Enforcement Encounters, Treatment Advocacy.

^[54] See Division on Diversity and Health Equity, Mental Health Facts for African-Americanss, American Psychiatric Association (2017), https://www.psychiatry.org/psychiatrists/cultural-competency/education/mental-health-facts

(detailed footnotes provided in this document).

^[55] Id.

^[56]  Video and Transcript: Hearing on the Case of Jason Harrison., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 22 2021), https://inquirycommission.org/video-and-transcript-jason-harrison-hearing-friday-january-22-international-commission-of-inquiry/.

^[57]  Joshua Budhu, Méabh O’Hare, & Altaf Sadhi, How “excited delirium” is misused to justify police brutality, Brookings Institute (Aug. 10, 2020), https://www.brookings.edu/blog/how-we-rise/2020/08/10/how-excited-delirium-is-misused-to-justify-police-brutality/.

^[58] Case of Kayla Moore, supra.

^[59]  Video and Transcript: Hearing on the Case of Breonna Taylor., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 30, 2021), https://inquirycommission.org/video-and-transcript-breonna-taylor-hearing-saturday-january-30-international-commission-of-inquiry/ (hereinafter “Case of Breonna Taylor”).

^[60] Id.

^[61] Edwards, Lee, & Esposito, supra n. 6.

^[62]  Kimberlé Williams Crenshaw & Andrea J. Ritchie, Say Her Name: Resisting Police Brutality Against Black Women, African-Americans Policy Forum (2015), https://44bbdc6e-01a4-4a9a-88bc-731c6524888e.filesusr.com/ugd/62e126_9223ee35c2694ac3bd3f2171504ca3f7.pdf.

^[63]  Marisa Iati, Jennifer Jenkins, & Sommer Brugal, Nearly 200 women have been fatally shot by the police since 2015, The Washington Post (Sep. 4, 2020), https://www.washingtonpost.com/graphics/2020/investigations/police-shootings-women/ (out of 5,600 people killed during the same period).

^[64] Id.

^[65]  Odis Johnson, Jr., Ph.D., Keon Gilbert Dr.PH, Habiba Ibrahim, Ph.D., Race, Gender and the Contexts of Unarmed Fatal Interactions with Police, at 24, Washington University in St. Louis, https://cpb-us-w2.wpmucdn.com/sites.wustl.edu/dist/b/1205/files/2018/02/Race-Gender-and-Unarmed-1y9md6e.pdf.

^[66]  Nigel Roberts, Pregnant Chicago Woman Accuses Angry Cop of Punching Her Belly, The Root (May 21, 2015), https://www.theroot.com/pregnant-chicago-woman-accuses-angry-cop-of-punching-he-1790859916.

^[67] Andrea Ritchie Expert Presentation, supra.

^[68]  Women and the Drug War, Drug Policy Alliance, https://drugpolicy.org/issues/women-drug-war (last accessed Mar. 24, 2021).

^[69] Case of Kayla Moore, supra.

^[70]  Marisa Iati, Jennifer Jenkins, & Sommer Brugal, supra. n. 136.

^[71] Id.

^[72] Case of Kayla Moore, supra.

^[73]  Katelyn Burns, Why police often single out trans people for violence, Vox (June 23, 2020), https://www.vox.com/identities/2020/6/23/21295432/police-black-trans-people-violence.

^[74] Andrea Ritchie Expert Presentation, supra.

^[75]  Michelle S. Jacobs, The Violent State: Black Women’s Invisible Struggle Against Police Violence, 24, 69-70 WM. & Mary J. Women & L.  39 (2017).

^[76]  Anti-Violence Project, Hate Violence Against Transgender Communities, National Coalition of Anti-Violence Programs, https://avp.org/wp-content/uploads/2017/04/ncavp_transhvfactsheet.pdf (last accessed Mar. 24, 2021).

^[77]  Dara E. Purvis & Melissa Blanco, Police Sexual Violence: Police Brutality, #MeToo, and Masculinities, 108 Calif. L. Rev. 5 (Oct. 2020).

^[78]  Video and Transcript: Hearing on the Case of Vincent Truitt., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb. 6, 2021), https://inquirycommission.org/video-and-transcript-vincent-truitt-hearing-saturday-february-6-international-commission-of-inquiry/ (hereinafter “Case of Vincent Truitt”).

^[79]  Video and Transcript: Hearing on the Case of Tamir Rice., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 66, 2021), https://inquirycommission.org/video-and-transcript-tamir-rice-hearing-tuesday-january-26-international-commission-of-inquiry/.

^[80] Case of Vincent Truitt, supra.

^[81]  Kim Taylor-Thompson, Op-Ed: Why America is still living with the damage done by the ‘superpredator’ lie, Los Angeles Times (Nov. 27. 2020).

^[82]  Video and Transcript: Hearing on the Case of Casey Goodson, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb 6., 2021), https://inquirycommission.org/video-and-transcript-casey-goodson-hearing-saturday-february-6-international-commission-of-inquiry/ (hereinafter “Case of Casey Goodson”).

^[83] Case of George Floyd, supra.

^[84]  Kenya Downs, When Black death goes viral, it can trigger PTSD-like trauma, Public Broadcasting Service (PBS) (Jul. 22, 2016), https://www.pbs.org/newshour/nation/black-pain-gone-viral-racism-graphic-videos-can-create-ptsd-like-trauma.

^[85] Case of Nathaniel Pickett, supra.

^[86]  Video and Transcript: Hearing on the Case of Andrew Kearse., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb. 1, 2021), https://inquirycommission.org/video-and-transcript-andrew-kearse-hearing-monday-february-1-international-commission-of-inquiry/.

^[87] Case of Ramarley Graham, supra.

^[88] Testimony of Collette Flanagan, supra.

^[89] Video and Transcript: Hearing on the Case of Antonio Garcia., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb. 1, 2021), https://inquirycommission.org/video-and-transcript-antonio-garcia-hearing-monday-february-1-international-commission-of-inquiry/.

^[90]  Video and Transcript: Hearing on the Case of Manuel Elijah Ellis., International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb. 3, 2021), https://inquirycommission.org/video-and-transcript-manuel-elijah-ellis-hearing-wednesday-february-3-international-commission-of-inquiry/.

^[91] Case of Eric Garner, supra.

^[92]  Cyril Josh Barker, Juanita Young alleges more police brutality, New York Amsterdam News (Apr. 12, 2011), http://amsterdamnews.com/news/2011/apr/12/juanita-young-alleges-more-police-brutality/.

^[93]  Video and Transcript: Hearing on the Case of Aaron Campbell, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 20, 2021), https://inquirycommission.org/video-and-transcript-aaron-campbell-hearing-wednesday-january-20-international-commission-of-inquiry/ (hereinafter, “Case of Aaron Campbell”).

^[94]  Juliana Morgan-Trostle & Kexin Zheng, The State of Black Immigrants, NYU Law School Immigrant Rights Clinic and Black Alliance for Just Immigration 5 (2016), https://www.immigrationresearch.org/system/files/sobi-fullreport-jan22.pdf (last accessed March 1, 2021).

^[95] Id. at 20.

^[96] Id.

^[97]  Video: Camilo Perez-Bustillo, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb. 5, 2021), https://inquirycommission.org/?s=bustillo.

^[98]  Yesenia Chavez & Madhuri Grewal, It Is Time for a New Way Forward, American Civil Liberties Union (Jan. 7, 2020), https://www.aclu.org/news/immigrants-rights/it-is-time-for-a-new-way-forward/.

^[99]  Ashoka Mukpo, For Black Immigrants, Police and ICE Are Two Sides of the Same Coin, American Civil Liberties Union (Sep. 3, 2020), https://www.aclu.org/news/criminal-law-reform/for-black-immigrants-police-and-ice-are-two-sides-of-the-same-coin/.

^[100]  Video and Transcript: Hearing on the Case of Botham Jean, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 19, 2021), https://inquirycommission.org/video-and-transcript-botham-jean-hearing-tuesday-january-19-international-commission-of-inquiry/ (hereinafter, “Case of Botham Jean”).

^[101]  Video and Transcript: Hearing on the Case of Daniel Prude, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 23, 2021), https://inquirycommission.org/video-and-transcript-daniel-prude-hearing-saturday-january-23-international-commission-of-inquiry/.

^[102]  Samuel Sinyangwe, Mapping Police Violence, Mapping Police Violence (last updated Mar. 14, 2021), https://mappingpoliceviolence.org.

^[103] Case of Botham Jean, supra.

^[104]  Michael Hill and Michael R., Sisak, Daniel Prude case reflects difficulty of prosecuting police, Associated Press (Feb. 25, 2021), https://apnews.com/article/new-york-daniel-prude-shootings-2034e038bd815cc62414fad04176ce2e.

^[105]  Are There Limits to Prosecutorial Discretion?, Southern Poverty Law Center (Jan. 1, 2003), https://www.splcenter.org/fighting-hate/intelligence-report/2003/are-there-limits-prosecutorial-discretion.

^[106]  Video and Transcript: Hearing on the Case of Mubarak Soulemane, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 27, 2021), https://inquirycommission.org/video-and-transcript-mubarak-soulemane-hearing-wednesday-january-27-international-commission-of-inquiry/ (hereinafter “Case of Mubarak Soulemane”).

^[107] Case of Aaron Campbell, supra.

^[108] Video: Expert Presentation by Flint Taylor on Chicago Police Torture Cases and Reparations, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States, https://inquirycommission.org/video-flint-taylor-expert-presentation/.

^[109] Logan Jaffe, The Nation’s First Reparations Package to Survivors of Police Torture Included a Public Memorial. Survivors are Still Waiting, ProPublica (July 3, 2020), https://www.propublica.org/article/the-nations-first-reparations-package-to-survivors-of-police-torture-included-a-public-memorial-survivors-are-still-waiting.

^[110] International Association of Democratic Lawyers, International Commission of Inquiry Orientation Video, YouTube (Jan. 13, 2021), https://www.youtube.com/watch?v=ydYqitNtbZQ&t=5879s\.

^[111] Case of Michael Brown, supra.

^[112] Case of Eric Garner, supra.

^[113] Case of George Floyd, supra

^[114] Case of Jordan Baker, supra.

^[115]  Samantha Michaels, Why Coroners Often Blame Police Killings on a Made-Up Medical Condition, Mother Jones (Oct. 14, 2020), https://www.motherjones.com/crime-justice/2020/10/why-coroners-often-blame-police-killings-on-a-made-up-medical-condition/.

^[116]  Case of Jordan Baker, supra.

^[117]  Video and Transcript: Hearing on the Case of Casey Goodson, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb 6., 2021), https://inquirycommission.org/video-and-transcript-casey-goodson-hearing-saturday-february-6-international-commission-of-inquiry/ (hereinafter “Case of Casey Goodson”).

^[118]  Timothy Williams, Cast-Out Police Officers Are Often Hired in Other Cities, The New York Times (Sep. 10, 2016), https://www.nytimes.com/2016/09/11/us/whereabouts-of-cast-out-police-officers-other-cities-often-hire-them.html.

^[119]  Janelle Griffith, ‘He choked me out’: Others detail allegations of abuse by officer who knelt on George Floyd, NBC News (Mar. 3, 2021), https://www.nbcnews.com/news/us-news/he-choked-me-out-others-detail-allegations-abuse-officer-who-n1259207.

^[120]  Case of Eric Garner, supra.

^[121]  Case of Alberta Spruill, supra.

^[122]  Case of Botham Jean, supra.

^[123] Video and Transcript: Hearing on the Case of Tarika Wilson, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Feb. 4, 2021), https://inquirycommission.org/video-and-transcript-tarika-wilson-hearing-thursday-february-4-international-commission-of-inquiry/.

^[124] Check The Police Project, How Police Union Contracts Block Accountability, https://www.checkthepolice.org/#project (last accessed Mar. 26, 2021).

^[125]  Case of Casey Goodson, supra.

^[126] Video and Transcript: Hearing on the Case of Shereese Francis, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 23, 2021), https://inquirycommission.org/video-and-transcript-shereese-francis-hearing-saturday-january-23-international-commission-of-inquiry/.

^[127] Case of Tyrone West, supra.

^[128] Id.

^[129]  Video and Transcript: Hearing on the Case of Jayvis Benjamin, International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States (Jan. 21, 2021), https://inquirycommission.org/video-and-transcript-jayvis-benjamin-hearing-thursday-january-21-international-commission-of-inquiry/ (hereinafter “Case of Jayvis Benjamin”).

^[130]  International Association of Democratic Lawyers, Expert Testimony of P. Venetis, in International Commission of Inquiry Orientation Video, YouTube (Jan. 13, 2021), https://www.youtube.com/watch?v=ydYqitNtbZQ&t=13503s, (hereinafter “Expert Testimony of P. Venetis”).

^[131] Id.

^[132] Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

^[133] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

^[134] Jamison v. McClendon, 3:16-cv-00595-CWR-LRA, at *5 (S.D. Mo. 2020).

^[135] Id. at *32.

^[136] Expert Testimony of P. Venetis, supra.

^[137] Case of Richie Harbison, supra.

^[138] Case of Jayvis Benjamin, supra.

^[139] Case of Richie Harbison, supra.

^[140] Case of Mubarak Soulemane, supra.

^[141] Monell v. Dep;t. of Soc. Servs., 436 U.S. 658, 692 (1978)