How the Police Get Away With Murder

Police officers who murder citizens in our communities are more likely than not to get off scot-free. The odds are that they will not be prosecuted at all, and if they are, they will be offered a plea bargain to misdemeanor assault or manslaughter, at worst. The reasons that police can kill at will are found in the laws themselves.

The disparity in how police officers who kill are treated, as compared to citizens who kill, lies in the way the state deals with the two groups. A citizen who is accused or suspected of killing another citizen, is immediately arrested, held without bail, and subjected to sustained and often brutal interrogation. The threats that police make to murder suspects are the subject of books, television dramas and newspaper articles. The pressure applied by police officers to murder suspects borders on the illegal in most situations, and can even constitute the sort of torture we’ve come to expect from our lawless government. The treatment of “enemy combatants” at Guantanamo is only marginally less horrific than the treatment of prison inmates and gang members suspected of committing serious offenses. Threats to “throw the book” at a suspect, if (s)he doesn’t confess, threats to arrest and/or deport family members, threats of beatings and worse, are the every day grist of police interrogations. The justification is that suspects are “bad” people, and deserve what they get. Naïve principles about presumptions of innocence go out the window when the interrogation room door closes.

Within hours, if not days, of a citizen suspect’s arrest, the police will have gathered incriminating evidence, a confession, or leads to witnesses who can assure a conviction in the case. Only the most street-wise defendants will assert their right to remain silent, or speak with a lawyer in the face of the kind of bullying that goes on in these situations. Those charged with murder will not be released on bail, and only the wealthy will have access to an attorney who will have time to spend with them before their first court appearance.

Compare that situation with that of a police officer who kills a citizen. In San Francisco, the officer will first be placed on “paid administrative leave.” [See SFPD General Order 8.11, entitled “Investigations of Officer Involved Shootings and Discharges.”] The officer will then be asked to participate in an internal police investigation, where (s)he is represented by an attorney, and provided with all of the rights set forth in the “Police Officer’s Bill of Rights.”

The trail of obfuscation begins the day of the killing when the police officer is hustled into the custody of the police and away from public scrutiny. The police officer then becomes the property of the internal police agencies and their chain of command.

Initially, there are two investigations for police officers. One is a criminal investigation, which is conducted separately by the Homicide Detail and the Office of the District Attorney (DA). The other is the Administrative Investigation conducted by the Management Control Division. Then, the Emergency Communications Division, and the immediate supervisor or platoon commander where the crime took place, take command. This agency notifies the Field Operations Bureau Headquarters (Center), who notifies at least nine more internal police agencies. Also, the DA’s and Office of Citizen Complaints are notified as well as the police Legal Division.

The victims’ family members, their attorneys, and the media are not allowed to interview the officer; and, no public bodies have access to the officer while the police investigation is proceeding. This period of grace affords the officer the opportunity to work with his/her colleagues and attorneys to assure that no damaging version of the offense is publicized or pursued. A cynical individual might surmise that it also gives the police department an opportunity to destroy inculpatory evidence, or “turn” witnesses who might have damaging testimony or versions of what occurred.

The police officer is escorted from the crime scene to the Bureau Headquarters (department facility) where the officer will be interviewed by the Homicide Detail Inspectors. Officers shall not return to regular assignment for a minimum of 10 calendar days. “This reassignment is administrative only and in no way shall be considered punitive.”

Within 5 business days, the Chief of Police shall convene a panel to discuss whether it is appropriate for the involved member to return to duty. There is a mandatory debriefing (per DGO 8.04, Section 1.A), where a written report is made and sent to the Police Commission and Director of the OCC. The written report “shall not be disclosed to any member of the public except by court order.” Then the Police Commission meets with the Chief of Police to review the Chief’s findings and decision. The officer is also debriefed by the Crisis Incident Response Team.

It is both the Homicide Detail and the Management Control Division that respond immediately and conduct an investigation into every officer-involved shooting. Within 45 calendar days the Firearm Discharge Review Board shall receive the Homicide Detail Investigation report. Within 60 days, the Management Control Division findings shall be completed and submitted to the same Firearm Discharge Board, which must convene within 30 days. It then has 120 days to complete its investigation and issue its findings.

After these months of delay (and cover-up?), the police officer might be charged with an offense by the DA’s office. Picture how many murder prosecutions there would be for citizens who were provided the same protections as police officers before being arrested and interrogated. The state would never be able to charge anyone with murder if citizens were secluded and protected the way the police are.

This disparate treatment is a blatant violation of the Equal Protection Clauses of our state and federal Constitutions, and defense attorneys should challenge this outrageous contradiction at every stage of the criminal process. The reasons police get away with murder in our society, while citizens are often convicted of crimes they didn’t even commit, is simply because of the differing way the laws are written and designed. Our society doesn’t mind cops who kill, only citizens who do.

Luke Hiken is an attorney who has engaged in the practice of criminal, military, immigration, and appellate law. Marti Hiken is the director of Progressive Avenues. She is the former associate director of the Institute for Public Accuracy and former chair of the National Lawyers Guild Military Law Task Force. Read other articles by Marti Hiken and Luke Hiken, or visit Marti Hiken and Luke Hiken's website.