Police Investigating Police: Systemic Injustice Shields Officers from Accountability Kendall Godley1 Introduction Colorado Springs police officers Alan Van’t Land and Blake Evenson shot and killed De’Von Bailey.2 A grand jury decided that no criminal charges would be filed against Van’t Land and Evenson.3 Tulsa police officer Betty Shelby shot and killed Terence Crutcher. A jury acquitted Shelby of all charges. St. Anthony (MN) police officer Jeronimo Yanez shot and killed Philando Castile.4 A jury acquitted Yanez of all charges.5 University of Cincinnati police officer Ray Tensing shot and killed Samuel Dubose. A Cincinnati judge dropped all charges6 and awarded Tensing nearly $350,000 in compensation for unfair dismissal by his employer.7 What common thread allows these individuals to kill other citizens with impunity and sometimes even reward? They were all police officers. Recently, Derek Chauvin kneeled on George Floyd’s neck until Floyd lost his life.8 Will Chauvin face criminal liability for his pernicious 1 Kendall Godley is an Associate Editor for the Denver Law Review and a J.D. Candidate at the University of Denver, expected to graduate in May 2021. 2 Krystal Story & Andrew McMillan, What’s Happened since Devon Bailey was Killed by two CSPD Officers, KRDO (Aug. 3, 2020, 1:32 PM), https://krdo.com/news/2020/08/03/whats-happened-since-devon-bailey-was-killed-by- two-cspd-officers/. 3 Id. 4 Mitch Smith, Minnesota Officer Acquitted in Killing of Philando Castile, THE NEW YORK TIMES (June 16, 2017), https://www.nytimes.com/2017/06/16/us/police-shooting- trial-philando-castile.html. 5 Id. 6 Judge dismisses charges against Ray Tensing at Monday morning hearing, WCPO 9 CINCINNATI (July 24, 2017, 6:24 AM), https://www.wcpo.com/news/local- news/hamilton-county/cincinnati/downtown/judge-to-dismiss-charges-against-ray-tensing- at-monday-morning-hearing. 7 University of Cincinnati Paying Ray Tensing More than $300K in Back Pay, Legal Fees, WCPO 9 CINCINNATI (Mar. 22, 2018, 4:12 PM), https://www.wcpo.com/news/local-news/hamilton-county/cincinnati/university-of- cincinnati-paying-ray-tensing-more-than-300k-in-back-pay-legal-fees. 8 Evan Hill, Ainara Tiefenthaler, Christiaan Triebert, Drew Jordan, Haley Willis & Robin Stein, How George Floyd Was Killed in Police Custody, THE NEW YORK TIMES: VISUAL INVESTIGATIONS (Last updated Nov. 5, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html. 2 Denver Law Review Forum [25-Feb-2021] crime against humanity, or will he be the next in a long line of bad actors to elude justice because they wear a badge?9 The United States has a disturbing history of police violence against citizens.10 Admittedly, police have a dangerous and challenging job regulating public safety and deterring criminal activity. However, the lack of criminal or civil liability for officers’ unnecessary use of force has led to a lack of accountability for police officers and a decreased public trust in law enforcement. Several high-profile cases, viral police body-cam footage, and persistent protests have opened the public’s eyes to the horrifying reality that a family member could be the victim of a tragic misunderstanding or even a sinister hate crime because Black people are disproportionately affected by police officers’ abuse of power. The fear of abusive policing practices is legitimate and presents a significant challenge for local governments looking to restore public trust in law enforcement. Several events in 2020 pushed this conversation to a tipping point. Black Lives Matter (BLM) protests exploded in popularity and active participation across the world.11 Peaceful protests organized by BLM and other activist groups increased public awareness and pressure on local governments to acknowledge and address police brutality. Mass protests and support for advocacy groups generated the necessary momentum for bold policy proposals that dismantle the processes enabling police brutality. This Article argues that independent investigations of officer- involved shootings must be mandatory to protect citizens—especially Black citizens—from unlawful use of lethal force, to rebuild public trust in law enforcement, and to increase accountability for unjust law enforcement practices. Officers are afforded significant protections from criminal prosecution because the investigation process for an “officer-involved- shooting” is inherently biased and it is difficult to establish the elements for criminal misconduct in a case involving an officer-involved shooting. This Article examines the former of these two issues—the current procedures in 9 As of date of publication, Derek Chauvin had not yet been tried. 10 The History of American Police Brutality, THE NATIONAL TRIAL LAWYERS BLOG (July 27, 2020), https://thenationaltriallawyers.org/2020/07/the-history-of-american-police- brutality/. 11 Protests across the globe after George Floyd’s death, CNN WORLD (Last updated June 13, 2020, 3:22 PM), cnn.com/2020/06/06/world/gallery/intl-george-floyd- protests/index.html. 3 Denver Law Review Forum [25-Feb-2021] place for officer-involved-shootings— critiques these procedures, and suggests a better alternative, independent investigations. This Article proceeds in three parts. Part I provides background on the legal concepts governing police use of lethal force, examines the impact of these legal concepts on Black citizens, explains the process of the investigation into De’Von Bailey’s shooting, and outlines the current local policy for investigating officer-involved shootings. Part II provides an in- depth analysis of the current policies governing investigations of officer- involved shootings, points out their weaknesses, introduces the concept of independent investigations, and details the benefits of utilizing independent investigations. Part III recommends a new procedure that would yield improved results. Part I: Background 1. Police Use of Lethal Force a. Legal Standard There are two major barriers to prosecuting police use of lethal force: (1) the legal standard for holding a police officer criminally liable for a lethal shooting and (2) local control of investigation procedures.12 The Court has struggled to develop concrete black-letter-law determining when to hold a police officer criminally liable for the use of lethal force.13 The Fourth Amendment of the Constitution limits police use of force by providing citizens’ the right to be secure against “unreasonable” seizures.14 The Supreme Court has largely refrained from providing a specific definition for “unreasonable,” so this limitation remains relatively indeterminate and ambiguous.15 However, two landmark Supreme Court cases delineate the interpretation of the Fourth Amendment and how it 12 Mitchell F. Crusto, Right to Life: Interest-Convergence Policing, 71 RUTGERS UNIV. L. REV. 63, 78 (2018). 13 Id. at 79. 14 Daniel B. Loehr, Lethal Force at Home and Abroad, 42 N.Y.U. REV. L. & SOC. CHANGE 495, 502 (2018). (Excessive force claims can also be brought under the Eighth and Fourteenth Amendment when they relate to force used against prisoners. See Shand v. Chapdelaine, No. 3:17-cv-1947, 2018 WL 279980 (D. Conn. Jan. 3, 2018) (citing Sims v. Artuz, 230 F.3d 14, 20–21 (2d Cir. 2000)). 15 Id. 4 Denver Law Review Forum [25-Feb-2021] applies to cases where police are accused of excessive force: Tennessee v. Garner and Graham v. Connor.16 b. Tennessee v. Garner In 1985, the Court in Tennessee v. Garner defined and clarified rules for police use of lethal force.17 In Garner, the question before the Court was whether it is constitutional to use deadly force to prevent the escape of an unarmed suspect.18 Late in the evening on October 3, 1974, Memphis police officers Elton Hymon and Leslie Wright received a report concerning a burglar in someone’s home.19 Upon arriving at the scene, they met a bystander who told them she heard glass shattering and she believed someone was breaking into the home next door.20 Officer Hymon searched behind the house and saw someone run across the backyard.21 The fleeing suspect, Edward Garner, stopped after running toward a chain-link fence at the edge of the yard.22 Officer Hymon shined his flashlight on Garner and, after a brief inspection, determined that Garner was unarmed.23 While Garner crouched against the fence, Officer Hymon demanded that he stop moving.24 In response to the command, Garner attempted to flee by climbing the fence.25 Officer Hymon, believing that Garner would escape if he climbed the fence, shot Garner in the back of the head.26 Garner died in the hospital; the police found only ten dollars and a purse in his possession.27 Officer Hymon’s actions were deemed permissible under Tennessee law; the Memphis Police Firearm’s Review Board and a grand jury reviewed the incident—neither took any action.28 Edward Garner’s father brought an action against Officer Hymon, the Memphis Police Department 16 Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989). 17 Daniel B. Loehr, Lethal Force at Home and Abroad, 42 N.Y.U. REV. L. & SOC. CHANGE 495, 502 (2018). 18 Garner, 471 U.S. at 1. 19 Id. at 3. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. at 4. 25 Id. 26 Id. 27 Id. 28 Id. at 5. 5 Denver Law Review Forum [25-Feb-2021] and its director, and the mayor and city of Memphis, seeking damages under 42 U.S.C. § 1983 claiming that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution.29 The district court and the court of appeals found that Officer Hymon’s actions were authorized under a constitutional Tennessee statute because he acted in good-faith reliance on the statute, which meant his actions were protected by qualified immunity.30 However, the court remanded the case on the issue of liability against the city of Memphis because the Tennessee statute did not adequately account for the Fourth Amendment’s authority over incidents involving a “seizure.”31 The U.S.