Excessive use of Force by Law Enforcement Official since review

O t of actions government has takenUnited States of America
Assessment of actions government has taken on issues of
Excessive use of Force by Law Enforcement Official since review
We wish to inform the United Nations Committee on the Elimination of Racial Discrimination
that, despite Recommendation 17(a) (Excessive use of force by law enforcement officials) and
the response by the United States, the federal, state and local law enforcement agencies have
failed to protect members of minority groups who encounter law enforcement, are arrested,
brutalized and killed or taken to facilities of confinement where they die under the custody of
law enforcement. We petition the committee this year to analyze, discuss and adopt a follow-up
report on the United States that addresses these realities.
Author: The Cold Case Justice Initiative, Syracuse University College of Law, Syracuse
University, Syracuse, New York: principal contacts: Co-Directors, Professors Janis McDonald
and Paula Johnson, Syracuse University College of Law, Syracuse, New York 13244 and Kevin
Moran, Volunteer Investigator CCJI: [email protected], [email protected] &
[email protected] The Cold Case Justice Initiative (“CCJI”) has supported
families who have lost loved ones due to racist killings and advocates on their behalf for justice.
In addition CCJI has identified ongoing failures by law enforcement to investigate or prosecute
racist police brutality that often has led to death of a member of a minority group.
THE UNHRC Recommendation 17(a) (Excessive use of force by law enforcement officials)
(Concluding Observations adopted August 26, 2014):
Recommendation 17(a) (Police use of force): The Committee urges the State party to: (a)
Ensure that each allegation of excessive use of force by law enforcement officials is
promptly and effectively investigated; that the alleged perpetrators are prosecuted and, if
convicted, punished with appropriate sanctions; that investigations are re-opened when
new evidence becomes available; and that victims or their families are provided with
adequate compensation.
Actions reported by the State party
Pursuant to the Committee’s request, the United States provided the following information
pertaining to the Committee’s recommendations in paragraphs 17 (a):
1. U.S. federal, state, and local authorities take vigilant action to prevent use of excessive
force by law enforcement officials and to hold accountable persons responsible for such
use of force. It must be recognized that law enforcement officers have challenging and
often dangerous jobs and that the vast majority of their interactions with civilians involve
appropriate conduct. However, when there is improper conduct, the U.S. Department of
Justice (DOJ) has criminal jurisdiction to investigate and prosecute use of excessive force
by federal, state, and local officials that violates the U.S. Constitution or federal law…
DOJ also has civil jurisdiction to address state and local law enforcement patterns and
practices that violate the Constitution or federal law, including the use of excessive force.
2. Federal Prosecutions: In the last six years, DOJ has brought criminal charges against
more than 350 law enforcement officials.
3. State-Level Prosecutions examples of prosecutions at the state or local level involving the
alleged use of excessive force by police against members of racial or ethnic minorities….
4. Effective Remedies: In addition to bringing criminal prosecutions, the DOJ Civil Rights
Division continues to institute civil suits for equitable and declaratory relief pursuant to
the pattern or practice of police misconduct provision.
5. DOJ is also working proactively to prevent such incidents through training of police
officers and helping to strengthen police-community relations.
6. Effective remedies are also provided at the state level. The following are [five] recent
examples of compensation or other remedies for incidents involving members of racial or
ethnic minorities.…
Update of the issue
1. Not a single American state is in compliance with international standards for the use of
These standards are outlined in an important report by Amnesty International released
this May; the United States, as a signatory to such treaties as the International Covenant on Civil
and Political Rights, is legally obligated to respect these standards.
2. The current Director of the Federal Bureau of Investigation has admitted recently that the
neither the United States Department of Justice nor the FBI have ever collected statistics
about law enforcement interactions with civilians in excessive force cases, particularly
those leading to the victims’ deaths. 2
Such a requirement should be included in this proposal, which would call upon law
enforcement departments to report all encounters, the reasons for encounters, actions taken, and
3. The numbers of African Americans, Hispanic and Latino victims of police brutality and
death are much higher than their representation in the total population.3
In an investigation reported by the Guardian newspaper, about 95 percent of the victims are
male, and approximately half are 34-years-old or younger. African-Americans are heavily overrepresented among the dead, at about one in four -- double their percentage of the population. An
analysis of public records, local news reports found that 32% of black people killed by police in
2015 were unarmed, as were 25% of Hispanic and Latino people, compared with 15% of white
people killed. Id.
4. Black Americans that are killed by police are twice as likely to be unarmed as white
people, and minorities make up almost two-thirds of unarmed people killed by police. Id.
5. Little attention is paid to the fact that Native tribal members are more likely than any
other racial group to be killed by the police according to the Center on Juvenile and
Criminal Justice. (The rate was determined as a percentage of the total population.)4
6. Contrary to the assertions of the US Government response to Recommendation 17(a)
prosecutions and convictions of police officers recent reports by investigative journalists
reveal that among the thousands of fatal shootings at the hands of police since 2005, only
54 officers have been charged and most were cleared or acquitted in the cases that have
been resolved.5 According to University of California, Berkeley Professor Jerome
Karabel the Huffington Post, “Police Killings Surpass the Worst Years of Lynching,
Capital Punishment…”6 In theory, police officers are accountable for their actions and
are not above the law. But in practice, they are almost never charged with a crime, and in
those rare cases where they are charged, they are seldom convicted. Of the 54 cases in
which an officer was charged, only 11 resulted in convictions.
7. There is a need for specialized prosecutors to investigate and prosecute alleged homicides
where police are involved. Efforts to map the growing number of such homicides are
made by civilians and investigative reporters.7
The meager examples of State-Level prosecutions at the state or local level involving the
alleged use of excessive force by police against members of racial or ethnic minorities
belie the actual practice. In principle, such prosecutions should be led by the local district
attorney, but in practice this rarely occurs. An external and independent prosecutor, based
at the state rather than local level, must be charged with the task of investigating and,
where appropriate, prosecuting every case in which a civilian is killed by a law
enforcement officer. It is essential that the office housing this independent prosecutor
have adequate resources to conduct investigations and that these investigations be carried
out by people not tied to local law enforcement. As the United States President’s Task
Force rightly notes, "the public confers legitimacy only on those who they believe are
acting in a procedurally just way," and nothing undermines the legitimacy and trust of the
public more than the sense that the police can kill members of the community with
8. The failure to address systemic racist culture of law enforcement with a systemic
response has meant that little has been done proactively to prevent such incidents through
training of police officers and helping to strengthen police-community relations. There is
a great need for remedial and proactive action. Such institutional action in needed
because of the magnitude of the problem and because it isn’t about “individual bad cops”
but the systemic racist culture of law enforcement that results in these killings. Because
the violations stem from systemic law enforcement culture and policy, the response must
be systemic, as well.
9. U.S. police training in the use of deadly force is woefully inadequate. 9 In local police
budgets in the US, most funding goes to salaries and equipment and virtually nothing to
training. According to John Jay College of Criminal Justice Professor Maria Haberfeld
“it is a deadly formula.” While police training nationwide in the United States averages
19 weeks10 police in other countries receive training that can last more than two years.
It is telling that police academies spend far more time on firearms training devoting an average
of 60 hours to it, than on mediation and conflict management, which receive only eight hours.
10. The most damning indicator of the USG’s failure to meaningfully address the excessive
use of lethal force is the killing of suspects in custody. Though the tragic case of Freddie
Gray in Baltimore is the best known case of murder in police custody, African and
Native-Americans have been disproportionately frequent victims of deaths in custody,
comprising 32 percent of all victims compared to 24 percent of all police killings.
II. Three brutal murders in police custody have occurred in Mississippi during the 12 months prior to
the response of the United States Government. They are representative of the most egregious failure
of the USG to respond in good faith to the recommendations of 2014.
These three brutal deaths are eerily reminiscent of the events June 21, 1964, when three civil
rights activists seeking to register African Americans to vote were arrested for speeding and
taken to the Neshoba County Jail in Philadelphia, Mississippi. The three men – James Earl
Chaney from Meridian, Mississippi and Andrew Goodman and Mickey Schwerner from New
York City – soon disappeared. An extensive search was conducted by thousands of federal
troops. Their tortured, broken bodies were found buried in an earthenware damn 44 days after
their arrest. The nation and the world were appalled. Yet little has changed in Mississippi and
across the United States. Two brutal murders were committed while the suspects were in police
custody in the same Philadelphia, Mississippi jail system where the previous civil rights workers
were incarcerated before their deaths. The victims were Rexdale Henry, a Native-American, and
Michael McDougle, an African-American. Another murder of an unarmed African American,
Jonathan Sanders, was committed in nearby Stonewall, Mississippi, and while in police custody.
Rexdale Henry
Rexdale Henry, a Native-American member of the Choctaw tribe and a longtime
community activist, was found dead of as yet unspecified causes in a Philadelphia,
Mississippi jail cell on July 14, 2015. He was first detained on July 9 after failing to pay a
traffic fine, according to the Jackson Free Press.11 He was the second person this year to
die in the Neshoba County Jail.
Professor Janis McDonald Co-Director of the Syracuse University College of Law’s Cold
Case Justice Initiative 12 said “the unexpected death of a longtime activist like Henry
echoed the mysterious death of Black Lives Matter activist Sandra Bland13 in Waller
County, Texas in mid-July after an aggressive traffic stop that violated Texas Department
of Public Safety standards.” “It is critical to expose the many ways in which Black
Americans, Native Americans and other minorities are being arrested for minor charges
and end up dead in jail cells," McDonald said in a statement.
Michael DeAngelo McDougle
Michael McDougle an African-American, died in the Neshoba County, Philadelphia, Mississippi
jail.14 "According to eyewitness testimony, Brittany McDougle's husband, Michael McDougle,
was beaten and tasered by officers of the Philadelphia Police Department on the evening of Nov.
1, 2014 while in handcuffs," said attorney Carlos Moore, who filed a lawsuit on behalf of
Brittany McDougle. "Mr. McDougle was also tasered while in custody at the Neshoba County
Jail while in handcuffs. Mr. McDougle was found dead in his jail cell around 7:30 a.m. on Nov.
2." Although an autopsy was conducted by the state, the contents of the autopsy, including cause
and manner of death have not been provided to the family.
Jonathan Sanders
According to a Huffington Post report, when Jonathan Sanders, an unarmed black man, died in
Mississippi while in police custody, it was a racially motivated killing. Sanders, 39, a resident of
Stonewall, Mississippi, died after allegedly being placed in a chokehold by Officer Kevin
Herrington, attorneys C.J. Lawrence and Chokwe Lumumba told The Huffington Post on
Sanders, who trained horses and was often seen riding around in a horse-drawn buggy, was at a
gas station with one of his animals at about 10 p.m. Wednesday when he saw an altercation
between Herrington and another white man, whom Sanders knew. According to Lawrence,
Sanders approached them and asked Herrington to leave the other man alone. A witness told the
attorneys that after Sanders left, Herrington allegedly said, "I'm gonna get that n****r."
Lawrence said multiple eyewitnesses have told the attorneys that Herrington then got in his car
and drove after Sanders, who was on his buggy. The officer turned on his police lights when he
was just behind Sanders. The lights startled the horse, which took off at a sprint, throwing
Sanders off his buggy.
"Jonathan immediately began to run after his horse, unaware of what was going on behind him,"
Lawrence said. "Herrington proceeded to chase Jonathan." yanking him to the ground.
Herrington allegedly wrapped his arms around the man's neck, placing him a chokehold,
Lawrence said.
One of the witnesses, who works as a correctional officer in Stonewall, came out to confront
Herrington, allegedly asking the officer to let Sanders go. The correctional officer repeatedly
asked Herrington to let Sanders go so that the correctional officer could perform CPR on him,
but Herrington allegedly declined, according to testimony. Lawrence and Lumumba said that
although it only too three minutes for Staten Island, N.Y. Eric Garner to die in a chokehold in a
widely publicized case last summer16 14. Sanders was allegedly placed in a chokehold for more
than 20 minutes before EMTs arrived. Sanders was dead by the time help arrived, the attorneys
"This is a town where the cops have free rein," Lawrence said. "That’s what type of place it is."
Neither the family nor the attorneys have been provided with autopsy results.
15. Extra-judicial killings by the police, the all-too-common practice that ignited today’s Civil
Rights movement, now number more than 1,100 per year.
16. Settlements with police departments that focus on future actions of the police rather than
criminal prosecutions of individual officers is not enough.
We grade for the follow-up action of the United States Government on 17(a):
C1: Some actions taken, but recommendations are not really implemented.
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