The shooting made national news, bore the marks of racial profiling and suggested that Groubert may not have been properly trained. Groubert’s personnel file showed that he had previously been involved in a harrowing shootout and may not have received appropriate counseling and treatment after the incident. The lingering trauma from the incident might have contributed to why he saw a threat in Jones’s innocuous actions. Insufficient training resulting in foreseeable incidents such as the Jones shooting can form the basis of what’s known as a Monell claim against the employing government agency. Yet in the end, Jones’s settlement was $285,000, a paltry figure that likely won’t cover his medical expenses.
In a similar incident less than a year earlier, York County, S.C., deputy Terrance Knox shot 70-year-old Bobby Canipe during a traffic stop. Canipe was reaching for a cane. Canipe mistook it for a gun. Groubert later faced criminal charges; Knox did not. Canipe also received what seemed to be a paltry settlement, just a little over $150,000.
The likely reason both men settled for such low figures has a lot to do with the quirks in South Carolina’s liability laws, as well as how the state’s counties and municipalities insure themselves. Critics of these laws say they create perverse incentives that significantly distort how attorneys, police agencies and local governments might otherwise handle police brutality. They say the system encourages the quick settling of claims in the absolute worst cases but discourages lawsuits in most others. And while the laws sometimes nudge police agencies and prosecutors to terminate or even indict officers caught in particularly egregious behavior, the current laws do nothing to address any shortcomings in hiring, training or disciplinary policy that may have allowed such incidents to happen in the first place.
This series has previously examined the other unique aspect of policing in the Palmetto State: the existence of the South Carolina Law Enforcement Division (SLED), a state agency that, in addition to a number of other responsibilities, investigates most police shootings. Detractors say that while SLED investigations of police shootings and other incidents of alleged brutality may have the veneer of independence and impartiality, the agency doesn’t appear to demonstrate either in practice.
Of course, South Carolina’s police agencies also face many of the same challenges of policing faced by other states. But these two factors — SLED and a cap on damages — have created a unique police culture that seems to produce a high number of shootings, disproportionate stops of minorities, frequent incidents of alleged brutality and, perhaps most disturbing, potentially false or misleading statements by police officers and strong evidence suggesting that law enforcement agencies, police leaders and SLED investigators are overlooking misconduct. (A public information officer with SLED initially agreed to set up an interview with division chief Mark Keel, but then didn’t call back.)
What to do about all of this isn’t entirely clear. Some policing experts and attorneys in the state say reforming SLED and fixing the state’s liability laws could go a long way. But others say improving policing in the state may require a more radical approach — a new oversight agency with real independence, objectivity and the power to hold accountable rogue cops, disinterested or defensive law enforcement leaders, or even entire departments that have gone astray.
The liability liability
Under the South Carolina State Tort Claims Act, anyone hoping to win a lawsuit against a state employee, including police officers, must prove gross negligence on the part of the employee — mere negligence isn’t enough. South Carolina then puts a $300,000 cap on any damages resulting from such claims. Because of the way these cases are considered, a plaintiff in a wrongful death case can sometimes get more than one claim from a single act, for a total cap of $600,000. But that cap is cumulative. No matter how many victims a state employee’s negligence may hurt, state and local governments aren’t legally obligated to pay out any more. (On rare occasions, they may offer more to settle particularly bad cases where there’s public or political pressure, but they’re under no obligation to do so.) The juries in these cases aren’t always aware of the law. An outraged jury could award millions to an injured plaintiff, unaware that the plaintiff will ultimately receive less than $300,000.
The only member of law enforcement to respond to requests for an interview for this series was Sheriff Leon Lott of Richland County. Lott says he, too, opposes the cap. “I think that if someone messes up and hurts or kills someone, the victim or the victim’s family should be compensated. An arbitrary cap doesn’t seem fair. But that’s just my personal opinion. The cap doesn’t affect how we handle cases.”
While most states and the federal government put caps on punitive damages, only South Carolina and a handful of other states (including Maryland, New Hampshire, Oregon and Florida) cap compensatory damages as well. In South Carolina, the cap also includes attorney’s fees. Legal experts and attorneys in the state say it makes for a quirky system with misaligned incentives. It tends to both prod plaintiffs and local governments to quickly settle the most egregious cases and serve as a deterrent to lawsuits in all but those worst-case incidents. The Walter Scott case is a good example of the latter. It was a particularly egregious shooting, caught on video, that inspired national outrage. Scott’s family settled for $6.5 million. But most importantly, there’s one thing the state’s liability laws don’t appear to do at all: Encourage policies that deter police misconduct and excessive force in the first place.
The cap applies only to lawsuits filed in state court. A victim of police abuse can still bring a federal civil rights claim against an individual officer. He or she can also file what’s called a Monell claim, a lawsuit alleging a pattern of training (or lack thereof) and policies that caused the constitutional violations. Federal civil rights claims don’t have the same limits on damages, and plaintiffs who win are also reimbursed for attorney’s fees.
But federal claims are also much more difficult to win. Under federal law, police officers are protected by the doctrine of qualified immunity, which requires a plaintiff to show not only a constitutional violation, but also that a reasonable police officer should have known that the officer’s actions were unconstitutional. Plaintiffs who file both a state and federal claim can choose whether to file in state or federal court, but only if they’re suing a local police agency. As state agencies, SLED and the state highway patrol are immune from being sued in federal court, unless they consent.
Choosing which court in which to file can be critical — and also confusing. In addition to federal claims being more difficult to win, federal courts have more rigid deadlines and more demanding standards for expert witnesses, which costs more money. But there are some advantages, too. Judges will be more familiar with the intricacies of Constitutional law. There’s also less risk of a local judge feeling local political pressure to ‘protect’ the local police agency. (State judges are paid from the same state budgets as many of the police officers being sued.) There is also political pressure. State senators and representatives may feel uncomfortable reappointing a state court judge seen as unfriendly to police (they’re appointed every six years). Even if there’s no such explicit threat, a state judge may feel it implicitly. A federal judge appointed for life may be less likely to feel that sort of political pressure. And, again, there’s no cap on damages for a federal claim.
But if a plaintiff files both claims in federal court and if the federal claim later loses, it will likely be past the statute of limitations to file a state claim. Filing both claims in state court avoids that problem, but the courts tend to be more hostile to plaintiffs.
Even if the plaintiff opts to file both claims in state court, the defendant (the police officer, usually represented by attorneys for or paid by the city or county) can move the case to federal court. Having the option of choosing between state or federal court can be a big advantage. One court may have a judge known to be more favorable to police, or the jury pool for federal court may have favorable demographics, or vice versa.
Federal claims typically require a much larger financial investment up front, and even when successful (which is rare), years can pass before the victim collects. For a victim waist-deep in medical bills, unable to work due to injury, or who is simply poor, that’s a long time to wait. And when local governments do offer a settlement for a claim under state law, it’s inevitably contingent on the plaintiff dropping any federal claims.
In theory, the availability of a state claim would encourage attorneys to take cases they’d be hesitant to file in federal court. But the cap gets in the way. “It’s definitely a disincentive,” says Joanna Schwartz, a professor at the UCLA School of Law who has published several studies on how lawsuits affect police policy and behavior. “That just isn’t enough money to make it worth an attorney’s time.”
“You’ll rarely even get a case where they’ll offer the full $300,000,” says Robert Phillips, an attorney in Rock Hill who specializes in these cases. “Why would they? They know that’s the maximum they’ll have to pay. They know they can low-ball the victims, because the more they drag it out, the more the victim has to pay. They know that if they take it to court, the plaintiff will need to fly in experts, put them up in a hotel, compensate them. When both sides know there’s a limit, it’s just not a fair negotiation.”
Litigating a torts claim in state court isn’t as expensive as a federal civil rights lawsuit, but it can still be extremely expensive. “Just hiring an expert to do something like build an animation of a shooting based on bullet trajectories, something like that can run you $20,000 or more,” Phillips says. “Before you even get to a jury, you could be looking at $50,000 or more just in expenses.”
For the counties, towns and police agencies, $300,000 isn’t much of a deterrent. Even in a small town, it likely isn’t enough money to produce major reforms. In theory, a federal lawsuit could provide that deterrent. But the cap on state damages also discourages plaintiffs from filing in federal court. While a few hundred thousand dollars won’t make anyone permanently rich, it also isn’t an insignificant amount of money. For someone injured or disabled by a police shooting or beating, a signed and delivered $300,000 check is hard to resist when weighed against a potentially larger figure that’s far less certain and may be years away. It can also be a tempting offer for an attorney who can’t afford to hire experts or investigators as well as the other expenses needed to prepare for a federal trial.
So somewhat paradoxically, the cap on damages both discourages filing lawsuits in state court and encourages those that do get filed to settle. That usually then precludes them from proceeding in federal court, where the damages could be large enough to bring changes in training or policy.
A shortage of attorneys
Federal claims are complicated, difficult cases to file. “They teach you torts law in law school, so most lawyers can file a state torts claim,” says one attorney in the state, who asked not to be identified by name. “But they don’t really teach federal civil rights law. Most lawyers down here have never filed or argued a federal civil rights case, and wouldn’t know how if they had to. The state claims are just easier to file.”
Phillips is one of a small number of attorneys in the state willing to take federal civil rights cases. One reason he’s able to take so many is that he has the backing of a well-funded law firm. Without that backing, he couldn’t do it. In South Carolina, as in other parts of the country, victims of police brutality often have a difficult time even finding an attorney for a consultation. “I interviewed an attorney in Texas who takes police brutality cases, but he’s the only one for hundreds of miles,” Schwartz says. “So he can be choosy. He’ll only represents what he calls ‘boy scouts.’ He’ll only take the most sympathetic victims. Those are the easier cases to win, but they aren’t necessarily the cases that will bring reform.”
“You’ve got to dig, and dig deep,” Phillips says. “Police departments don’t like to share incriminating information. Forcing them to do it can get expensive. The Lori Jean Ellis case cost my firm just under 250,000 in digging. If we would have lost at summary judgment, we’d be out a quarter million. Ninety-nine percent of lawyers and firms can’t or aren’t going to invest that kind of money in a case.”
Eric Bland, who represented the family of Zachary Hammond, the teen shot and killed by a police officer in Seneca, estimates that the video analysis alone in his case cost $35,000 to $40,000.
Christopher Mills, another attorney in the state who takes these cases, says that even if a victim can get past the immunity protections for police and municipalities at the summary judgment phase, they face another problem.
“Juries don’t like to convict cops,” Mills says. “They just don’t. They won’t do it unless the evidence is just overwhelming.” Another attorney in the state says he goes into such cases assuming his standard of proof is higher even than “beyond a reasonable doubt,” the government’s standard in a criminal case. “That isn’t the law,” he says. “But it’s reality. It’s just how juries see these cases.”
In addition to the low risk/reward ratio, bringing such lawsuits also takes an attorney with a certain disposition. Civil rights attorneys often deal with victims who are dead, poor, badly injured or have a criminal history. The cases can be bleak. The qualified immunity granted to police officers and sovereign immunity granted to municipalities means most attorneys will lose more than they win, even in cases where the courts will admit there was a clear injustice.
The work in a police brutality case can sometimes be punishing. Phillips says he investigated the Ellis case for three years. He made more than 25 trips to Ellis’s abandoned trailer, which at times was accessible only by climbing through an open window, sometimes dodging rats and other vermin, to take photos, test out the various narratives or just refresh his memory.
But such lawsuits are important. They can bring change, not necessarily by hitting municipal governments in the budget, but through their power to expose and publicize wrongdoing.
“There’s huge variation on how much cities pay out per officer,” says Schwartz. “In a place like Dallas, the city is paying out maybe hundreds of dollars per officer. In someplace like New York City, it’s thousands.”
Chicago, for example, has paid out $662 million to defend and settle police misconduct lawsuits since 2004, including more than $50 million in 2014 alone. All that money seems to have had very little effect on the incidence of misconduct or on the way the Chicago Police Department handles complaints against police officers. “In a huge city like Chicago or New York, even a million dollar award is just a drop in the city’s budget,” Schwartz says. “It’s just not large enough to make a difference.”
There are some examples in which large payouts have brought change in smaller cities and towns, but in larger cities, where there’s more data, the correlation is less clear. Payouts and lawsuit costs have soared in recent years in some of America’s largest cities, but according to Schwartz, whether those payouts affect the frequency of police misconduct, brutality or unjustified shootings isn’t just unclear, it may not be knowable.
“Whether the amounts these cities are paying has any effect on misconduct, we just don’t know. It turns out that it’s a really difficult thing to measure,” she says. “There are just too many factors to consider that have nothing to do with misconduct.” Such variables might include how sympathetic the victims appear to the public, how the local press covers policing issues, how willing political leadership is to fight the lawsuits, the crime rate and even the competence of the attorneys who file such cases. It’s also difficult to even find a proxy to measure the incidence of brutality or misconduct. Should all officer-involved shootings be counted? Or only those deemed to have been crimes? (The latter would be too small a number to be useful.) What about shootings that may have been legal, but also could have been avoided? How does a researcher make that determination?
None of which is to say lawsuits aren’t important, or that laws that discourage them have no effect on police shootings or police brutality. “Capping benefits is counter-productive to police reform,” says Schwartz. “Absolutely. I don’t think there’s any question about that.”
It’s just that they promote reform in less obvious ways. “The discovery process in a lawsuit is really important, for example,” Schwartz says. “It can reveal bad practices and behaviors that city leaders, or even the leaders of the law enforcement agency weren’t aware of.” In many jurisdictions, including South Carolina, not all body-camera and dash-cam videos are public record. It can take a subpoena or court order to get them released.
Schwartz says that the discovery process for a Monell claim in particular can be especially valuable. Those claims can produce statistics about complaints filed against officers, allegations of brutality, how many complaints resulted in disciplinary action, racial profiling or other problematic areas that a police agency might otherwise have little reason to compile.
Lawsuits also often generate press, especially in cases that result in large awards. Even if the financial rewards themselves don’t spur reform, media coverage can put a spotlight on misconduct, shootings and excessive-force incidents, spurring public outcry and political pressure for reform.
While South Carolina has seen some thorough and in-depth coverage of policing issues by papers such as Charleston’s Post and Courier, Columbia’s The State and the Myrtle Beach Sun News, many areas of the state are under-covered, as evidenced by the lack of coverage of Kershaw County’s $2 million settlement with the family of Lori Jean Ellis, the spare coverage of the shooting of Ernest Russell Jr. in Darlington County, or the utter lack of coverage of the roadside incidents involving Kelvin Hayes in Summerville and Elijah Pontoon in Aiken, even after both men filed lawsuits.
Without press attention, there’s little chance of any political or democratic pressure on local officials to change. The Aiken search of Pontoon is a particularly good example. The roadside cavity search of Pontoon, reported first here at The Watch, happened 17 months ago. The lawsuit was filed in October. There was no local coverage of the suit. But once the story went viral and attracted national attention, within days the city of Aiken hired an outside party to investigate, mandated racial sensitivity training for police officers, vowed to diversity the police force and set up a citizen review panel to adjudicate complaints against local police officers.
The role of insurance
There’s one area in which large awards and settlements do sometimes provide a strong financial incentive reform — in the smaller towns and counties that take out municipal insurance policies. John Rappaport at the University of Chicago has found good evidence that insurers play a positive role in influencing better training and better hiring practices as well as pushing policies that emphasize de-escalation and less reactionary policing.
In South Carolina, the state’s cities and counties can opt for a private insurer or they can buy a policy from one of the government insurance pools that are run through the state, including the South Carolina Municipal Insurance and Risk Financing Fund, and the South Carolina Association of Counties trust. There’s also a state Insurance Reserve Fund, which backs up the counties and municipalities.
But attorneys who handle these cases say these insurance policies are too vague, often contradictory and difficult to decipher, and can affect public policy in ways contrary to the public interest. For example, most policies state that the insurer won’t cover awards for criminal acts committed by state employees. Under the legal doctrine of respondeat superior, employers can be liable for actions taken by employees, but only if those actions are within the normal course of their employment. Some municipal insurers argue that criminal acts aren’t within the reasonable scope of duties of a state employee.
It’s a policy that provides a good incentive for police agencies to fire and criminally charge police officers in especially egregious cases. But it also can inhibit any pressure from insurers for meaningful reform. Once an officer is charged with a crime, the insurer is off the hook for damages, diminishing the incentive to get at the underlying problem. That’s what happened to Charles Shelley, another of Phillips’s clients. Video showed Kershaw County deputy Oddie Tribble in August 2010 striking Shelley 27 times with a baton, all while Shelley was restrained. (Note: The Kershaw County Sheriff’s Office did not respond to requests for an interview.) Because Shelley was later charged with a crime, the county’s insurer claimed it wasn’t obligated to pay him damages. Phillips is currently challenging that decision.
Even if a plaintiff wins in federal court, the city or state may just refuse to indemnify an officer who has been fired or criminally charged. The officer is still liable, but the government that employs him isn’t (unless the plaintiff won with a Monell claim). With the plaintiff left trying to collect a million-dollar award from a fired police officer, there once again is no incentive for a local or state government to make changes to policy or training. Experts consulted for this series say this is rare, but less uncommon now than it used to be. The city of Cleveland recently took the strategy a step further, by first refusing to indemnify officers who had large judgments against them, then having city attorneys help those officers declare bankruptcy. If that tactic is allowed to stand, and catches on, it could further diminish the ability of lawsuits to produce reform.
“The insurance companies have enormous control over what cases get settled,” Phillips says. “They call the shots.” That means that they also wield enormous influence over how lawsuits affect changes in training or public policy.
There have been enough of these incidents in South Carolina to suggest that the problems with the state’s police culture are more profound than a few bad cops. Allowing police agencies (or by proxy, their insurers) to limit liability simply by firing officers here and there may only gloss over the deeper problems. Termination and criminal charges can certainly bring a sense of justice in a specific case, but if those incidents are caused by bad hiring, improper training or insufficient disciplinary measures, terminating an officer does little to compel the police agency to review those policies.
When it comes to federal civil rights lawsuits, most police officers in the state are indemnified for a lot more, generally up to $1 million. (To make matters more confusing, the coverage exception in some policies to criminal acts may not apply to violations of a suspect’s constitutional rights.) But again, the ability of such lawsuits to change policy is limited by the difficulty and expense involved in bringing them, by the lack of attorneys willing and qualified to bring them, and by the low success rate, due to factors such as immunity and juror bias. And a Monell claim — the most direct way to challenge policies and practices — is generally much more complicated than a federal suit against an individual officer. In short, the more effective the legal action is in initiating reform, the less likely there will be attorneys who can bring it, and the less likely it will be successful.
The Post and Courier reported in November that since 2009, South Carolina as a state has paid $23 million in settlements and damages related to police shootings. But $17 million of that total came from just three high-profile cases settled in the previous year. “The press has gotten interested in a few of these stories,” Phillips says. “And that’s forced the hand of the local governments in some cases. But it doesn’t address the underlying problems. When the press loses interest, those problems will still be around.”
As noted earlier in this series, SLED investigators usually look only into whether or not police officers committed a crime. The agency looks only at individual incidents, not patterns or repeat instances of misconduct. The agency also doesn’t generally consider the possibility that the officers might have violated a suspect’s constitutional rights.
Because it’s seen as the state’s premier (and only, really) oversight agency, a SLED investigation that clears police officers after an incident is seen in the state as vindication. But because SLED only determines whether an officer committed a crime like murder, manslaughter, assault or official misconduct, issues like whether the tactics used during a warrant service violated the suspect’s Fourth Amendment rights, or whether a particular agency’s policies and procedures are safe or effective, escape scrutiny. If it wasn’t illegal, it’s not worth reconsidering.
Consider the Kershaw County Sheriff’s Office, an agency involved in several of the incidents examined in this series. According to affidavits filed in the Tribble case by former Kershaw County sheriff Steve McCaskill and Kirk Corley, who was in charge of training, the department only considered disciplining or retraining an officer if SLED investigators found evidence of a crime. When SLED failed to find evidence of criminality, an officer was considered cleared — not just of criminal conduct, but of any misconduct at all. (It’s worth noting that current sheriff Jim Matthews asked SLED to “sweep” the agency before he first took office in 2012. He made the request because he was concerned with how the agency had been run under McCaskill and didn’t want to be associated with problems from the prior administration. McCaskill sued Matthews over his comments; Kershaw County settled with McCaskill for $75,000.)
The implication is that there are two categories of police actions — those are that are commendable and those that are criminal. There’s very little in between. And, of course, if it has been determined that an officer has committed a crime, the department’s policy has been that by definition the officer wasn’t acting within department policy.
“Ideally, you want an oversight agency to not only hold officers accountable for unlawful shootings, but to encourage policies and procedures to prevent shootings that while perhaps legally justified, didn’t need to happen,” says Seth Stoughton, a former police officer who is now an assistant law professor, currently studying police law at the University of South Carolina School of Law. “We should be trying to prevent as many shootings and injuries as possible.”
But as the Post and Courier reported last year, “SLED officials contend that it’s not the agency’s job to critique the actions of the officers they investigate, only to gather enough facts to determine whether a crime has been committed.” Details from police shootings also aren’t incorporated into training manuals, either. Officials at the state’s Criminal Justice Academy told the paper that they just don’t have time to review recent shootings for potentially valuable lessons. (The head of SLED chairs the commission that oversees the police academy.)
SLED Chief Mark Keel, who took office in 2011, did tell the Post and Courier that he’d like to move the agency in that direction. He said he’d like SLED “to start reviewing these cases and start looking for lessons learned, good and bad,” adding, “Obviously one area to be looking at are these officer-involved shootings … to try to reduce the number.” But Keel later retreated. “Our job is to discover facts and report the facts,” he told the paper. “Our job is not to give opinions.”
“You want these investigations to accomplish a couple things,” says Walter Katz, the independent police auditor for San Jose, Calif.. “You want them to try to find out what actually occurred. But you also want to find out to what extent training, procedures, and policies affected what happened. You want to know if poor training or procedures caused an unnecessary death or injury, so if necessary those policies can be changed.”
Currently, there seems to be a general perception that SLED handles the latter, but in reality those questions are left to the police agencies themselves. And those agencies have strong incentives to insist that their training and procedures are fine.
But SLED’s problems may also be more fundamental than just the confusion about the agency’s mission.
SLED investigators also don’t generally look for patterns of excessive force or misconduct, either from an individual officer or from a police agency. They tend to take officers at their word, even if statements or interview answers are contradicted by video, witnesses or forensic evidence. As has been seen time and again in this series, they make little effort to verify officers’ claims or look into their histories to see whether they’re trustworthy.
There are also problems with the structure of the agency itself. As noted previously, agents are typically former law enforcement officers from other police departments around the state. They’re often assigned to the regions of the state where they served. Assigning agents to investigate friends and former colleagues would seem to defeat the very independence that’s often touted as the reason to ask SLED to look into a shooting in the first place.
It’s difficult to overstate the value of a proper investigation in the wake of a police shooting. “You have to remember that SLED investigators get the first crack at the evidence,” says Christopher Mills, a longtime attorney in South Carolina who handles police abuse cases. “They get the first opportunity to interview the officers and any witnesses. They get the first pass through the scene of the shooting.” If SLED investigators fail to do their jobs properly, they not only taint the credibility of their own in investigation, but they also may fail to find or properly preserve evidence that may be critical to a lawsuit or some other legal action.
What SLED investigators find — or don’t find — affects not just the outcome of the case in front of them but could potentially affect policing procedures, training and policy all over the state. For example, if the agency had determined years ago that a police officer who fired into a moving vehicle improperly used lethal force, that decision could have prompted police agencies all over South Carolina to prohibit or severely restrict officers from shooting at moving vehicles, as the police departments in Charlotte and Greenville now do. Given that 1 in 4 police shootings in the state occurs under just that scenario, it’s a policy that could well have saved lives.
Melvin Tucker, a retired Tampa police chief who now consults on litigation (including a few cases examined over the course of this series), questions whether an agency like SLED could ever be objective in its investigations.
“You just can’t have law enforcement officers investigating other law enforcement officers,” he says. “Police officers are reluctant to second-guess or question other police officers. I don’t know that you can ever make that work.”
Leaving the ultimate decision about whether to prosecute up to local solicitors (what South Carolina calls its district attorneys) is also a problem. “They work with the police, they rely on them. It’s just too much to think they’ll risk that relationship,” Tucker says. “You have to be realistic about this.”
Tucker’s proposal involves a series of state or regional review boards, preferably at the federal level, consisting of specially trained investigators who would review all police shootings and allegations of severe police brutality. That sort of system would certainly escape the bias problems of investigations conducted by local police and prosecutors, but it’s also politically ambitious. It would likely require authorization from Congress.
Richard Harpootlian, a former solicitor in South Carolina’s Fourth Judicial District who’s now in private practice, says he’d like to see South Carolina handle police shootings the way it handles highway fatalities. “We have an independent panel, the Multi-disciplinary Accident Investigation Team that comes in and makes takes an objective and impartial look at what happened,” Harpootlian says. “They don’t just assign blame, they collect data, and try to draw lessons based on what they find.”
Stephen Downing, a former assistant police chief at the Los Angeles Police Department who also reviewed cases for this series, sees promise in a similar model at the federal level. “I’m a pilot. I think you need something similar to what the National Transportation Safety Board does after an airplane crashes. These are professional people with no allegiances or axes to grind. They come in with one objective, which is to get to the bottom of what happened.”
Another alternative is a civilian review board, or an independent police auditor. Studies do show that civilian review boards sustain complaints against police more often than police departments that review themselves. But while there are a few examples of successful review boards, many others have been beset by problems, including lack of funding, backlogs, public mistrust and the lack of subpoena and investigatory powers (which forces them to rely on internal police investigations). A 2001 Justice Department study of nine review boards across the country found that seven of the nine had a staff of less than five, and all but three had two or fewer full-time employees. In some jurisdictions, the review board’s findings can be overturned by the police chief, the sheriff or a mediator. In others, the board has no disciplinary power at all, or what power it has can also be overruled.
Any proposal that includes a panel or board to review complaints against police officers also faces the problem of how to populate it. In most cities, citizen review boards are appointed by the mayor, city council or some combination of both. Appointments can be susceptible to pressure from police unions and police advocacy organizations, which if unchecked can make the board little more than a rubber stamp. In some cities, police unions have openly advocated sabotaging review boards. In others, they’ve successfully lobbied to dissolve the board or to dilute its powers.
The Richland County (S.C.) Sheriff’s Office does have a Citizens’ Advisory Council. It meets four times per year to review complaints against officers, department policies and disciplinary actions taken against any law enforcement personnel. But the council can’t impose punishment. At best, it can refer a case back to the internal affairs department. The members of the council are also appointed by the sheriff and, according to the website “serve at his discretion.” That doesn’t exactly inspire confidence in the councils objectivity.
Richland County Sheriff Leon Lott dismisses any concerns about independence. “When an agency has the capability, the safeguards, and trust of the community, as we do, there’s no reason for any outside group to do the investigation.”
Joanna Schwartz says any body that seeks to impose accountability or reform needs to possess four criteria to be successful: independence, resources, power and the will to hold police officers and agencies accountable. “It’s really difficult to get all four,” she says. Depending on how it’s staffed, a civilian review board might have the independence and even the will. But it will typically lack resources, subpoena power, the power to impose punishment or all three. An organization like SLED has resources and power but seems to come up short when it comes to will and independence. The plaintiffs’ bar has the will and the independence, but often lacks resources and power.
The most potent way to rein in police abuses may well be the political process. Voters can always elect sheriffs with more community-oriented approaches to law enforcement, and opt for mayors and city council members who promise to appoint similarly-minded police chiefs. They vote in prosecutors who vow to hold bad police officers accountable, or at least vote out those who won’t. That appears to be what happened in the prosecutorial elections in Chicago and Cleveland this year. In both elections, incumbents who declined to prosecute police officers after high-profile shootings were ousted from office.
South Carolina, of course, has different political demographics than Chicago or Cleveland. And any strategy that involves electoral politics also requires convincing a majority of voters, not an easy task if the targets of police abuse are disproportionately from minority populations. And while there is certainly variance among the state’s police agencies when it comes to professionalism, frequency of shootings and misconduct, the underlying problems are policies that affect the entire state. Electing more conscientious sheriffs could certainly help, but it wouldn’t change the incentives and collateral effects of those statewide policies.
The South Carolina legislature has at least shown some signs of concern. Lawmakers recently passed a law to outfit all police officers in the state with body cameras, and they’re currently considering a bill that would make all dash-cam videos public record. A police agency would need to get permission from a judge before refusing to release footage to the public. But there are other signs that the state’s lawmakers still haven’t quite come around. The body-camera bill explicitly exempted body-camera footage from open-records laws. And most of the state’s lawmakers also appear to be oblivious to, or at least unconcerned with, the problems with SLED investigating local police.
Since this series began, sources in the state say the Justice Department has begun civil rights investigations into two cases first reported here — the roadside searches of Kelvin Hayes and Elijah Pontoon. There’s also some indication that state officials may take another look at the police shooting of Ernest Russell Jr. in Darlington County. Meanwhile, James Flowers — the lead SLED investigator in the Lori Jean Ellis, Melvin Lawhorn and Zachary Hammond shootings — is running for sheriff of Richland County. His opponent is the incumbent, Leon Lott.