Off the Bench: Minimal due process has a place in even the most notorious cases

We need to improve our capacity to select, train, and discipline police officers. Emphasis should be placed on maturity, good judgment, and self-restraint. Training should focus on how to de-escalate tense situations. The power to arrest, and in the process, when necessary, to exercise force, must be balanced. Police are essential to an ordered society. We cannot function without them. But, remember that they are human beings and at times will make mistakes.

In the hyper-charged reaction to police over-reaction, a rush to judgment that fails to consider mitigating circumstances should be avoided, granted that sometimes, like the killing of George Floyd, it is difficult to identify gray areas. All four officers were immediately fired and promptly charged. One is obviously guilty, the others perhaps to a lesser degree, or not criminally responsible.

In hindsight, the two rookies with only a few shifts experience should have stopped and, if necessary, pulled Officer Chauvin off the dying victim. But how realistic is that? Under the circumstances, it would have been extraordinary. They were new to the force, likely nervous, and following the lead of a senior officer. Yet they were fired without a hearing, then charged. The public pressure to convict is enormous.

Then there’s the killing in Atlanta of Rayshard Brooks. During the initial stages of that incident, both the suspect and Officer Rolfe acted respectfully. Mr. Brooks admitted he was operating the car and was cooperative, obviously hoping to avoid being arrested. At the scene, he was found to be under the influence after failing a breathalyzer and field sobriety tests.

Officers are trained to arrest people driving under the influence, not let them go. The situation rapidly deteriorated when the officers tried to handcuff him. He resisted and a scuffle ensued. During the unsuccessful effort to restrain him, the suspect broke free and ran away, carrying one of the officer’s taser.

During the pursuit, he apparently fired the taser at Rolfe, who then fired three shots, striking him in the back. He died at the hospital. In retrospect, the officer should have let him go. He had the car and the man’s name and address. He could have been arrested later. But officers are not trained to let people go who resist arrest. Why create an incentive to resist?

The officer was immediately fired (without a hearing) and was promptly charged with murder and several other offenses. In the heat of the moment, he should have assessed the risk to Mr. Brooks, the public, and himself, and not discharged his weapon. In fleeing the scene, Mr. Brooks did not represent a reasonable threat to the officer or to the public. Most police departments discourage high speed pursuits of fleeing vehicles, given the danger to the public, police officers, and fugitives. Only in the most serious cases are they tolerated. The same self-control should apply to the use of potentially deadly force, particularly firearms.

Prosecutors consider mitigating circumstances when charging defendants, and judges do the same when sentencing the guilty. Defense counsel frequently point out circumstances that arguably lessen criminal responsibility, or at least warrant more lenient sentences. Only under very limited circumstances are police allowed to use deadly force, one of which applies when an officer reasonably believes he or another is in imminent danger of death or serious bodily harm.

Firing officers without a hearing immediately after a fatal encounter rather than suspending them during an investigation is itself an over-reaction. It’s an emotional and/or politically motivated response to a highly charged incident. Rather than act in the heat of the moment, some minimal due process is warranted. It’s easier to preach restraint than practice it.

“Wait a minute” allows for some reflection before having to confront “What have I done?”

James W. Dolan is a retired Dorchester District Court judge who now practices law.