Under Color of Authority: Use of force by local police appears to be dramatically on the rise

February 3, 2015

Jennifer Martin-Romme
Zenith News

On December 13, 1999, Duluth police were summoned to the home of a 65-year-old man who was threatening his wife with a kitchen knife.


As they would later discover, the man suffered from a brain tumor, which might have been causing him to behave in unusual or violent ways.


When he raised his arm to plunge the knife into his wife’s chest, the officers shot and killed him, reportedly the first fatal police shooting in Duluth in over 40 years.


It was the first in a rash of “use-of-force” incidents by law enforcement in the region, according to a Zenith review of local media archives.


Since 1999, there have been five fatal police shootings in Duluth, two non-fatal police shootings, and one fatal encounter with police that was not a shooting—and that’s not even counting shootings by Superior Police, nor use-of-force incidents throughout the region that were either non-fatal and/or were not a shooting.


Superior did not see quite the same dramatic leap in use-of-force, but it’s been steadily increasing in both frequency and intensity. Until 2000, use-of-force by Superior Police was the occasional stuff of country songs—from shooting out the tires on a car at the honky-tonk, to (by the sounds of it) losing a brawl at a wedding reception.


Since 2000, there’s still only been about one Superior incident every few years, but now they involve pepper spray, closed fists, and live ammunition.


Duluth Police Chief Gordon Ramsay disagrees with both this media-archive approach to researching the question, and with the conclusion that local use-of-force is increasing at all. “You can’t take just information from the newspaper. Your facts can’t be found in newspapers.”


But newspapers are about the only place where police behavior is reliably tracked, according to D. Brian Burghart, editor and publisher of the Reno News and Review and founder of FatalEncounters.org, a website seeking to catalog nationwide civilian deaths during interactions with law enforcement since January 1, 2000.


The site’s entries include the deceased civilian’s name, age, gender, race, date and location of death, a brief narrative of the circumstances, the disposition of the case, and whether the person had a mental illness.


Burghart began the project in 2012, only to find that fatal use-of-force—let alone non-fatal—is not reliably tracked anywhere. The FBI collects the number of “justifiable homicides” by police, but only 750 of the nearly 18,000 law enforcement agencies nationwide actually submit this information to the FBI.


The US Department of Justice tracks “arrest-related deaths.” Their figures are higher than the FBI’s, but, based on the data he’s already collected, Burghart estimates it represents only two-thirds of actual arrest-related deaths.


The Centers for Disease Control also keeps some deadly force information, but doesn’t include, for example, the city where it happened nor even the date.


Moreover, says Burghart, “All federal data are anonymized, so that you can’t research a particular department or a particular region across time.”


None of this is to suggest that he’s found local press stories to be thorough, or even accurate. “It amazes me how often they guess on facts,” such as street names.


He’s found that the race of those involved is almost never reported unless it becomes the subject of community tension. “There’s a journalistic ethic that you’re not supposed to report race unless it’s germane, but [when it comes to police violence] I’d say race is germane here.”


Yet Burghart cannot say that deadly use-of-force is necessarily increasing. “My feeling is it’s growing, but we don’t have 2013 and 2014 completed. Then we’ll be able to say...One thing that has increased our perception of it is social media. You never read it in the press unless it’s a local shooting, but now they’re on our Facebook sites.”


Duluth Police Public Information Officer Ron Tinsley posits a somewhat similar theory. “Part of it is because there’s more access to recording technology,” and thus more incidents are caught on camera—including those where an appropriate use of force might look overly aggressive to someone who has rarely seen a real arrest, or when only part of an incident is captured by the recording.


Indeed, names like Natasha Lancour [January 5, 2014] and Anthony Jackson [September 21, 2012] might not have become local household names if those incidents had not been videotaped—but neither one was recorded by concerned citizens. The Lancour incident was captured by the officer’s own dash-cam, and the Jackson incident on surveillance footage at the detox center.


Besides, even if non-fatal use-of-force was less commonly reported in the years before widespread digital recording, police shootings still tended to hit the newspaper—even back in 1978—and those, too, have been on the rise locally since 1999.


If anything, local reports from the ’70s and ’80s have an almost quaint innocence about them. A biting K9 or deployment of pepper spray and baton made headlines back then. Judging by more recent articles, someone has to die, or come close to it, to make the papers these days.


However, Chief Ramsay does not believe local use-of-force has increased. He was incredulous about the Tribune’s 1999 claim of no fatal police shootings in 40 years, but he could not immediately think of any that happened before 1999. (Both of us forgot the 1990 Wilson case, perhaps because the police force used in that case was virtually inarguable.)


Nevertheless, Ramsay provides a broadly reasonable, if problematic, theory and points to several recent Duluth police shootings in support of it. “Mental illness calls have gone up 35 percent since 2007...I think we’ve had a proliferation of group homes in Duluth with people suffering from mental illness. They hire college kids at $8 or $9 an hour. I really wonder if there’s something in the food, or if it’s something institutional like that.


“I think 20 to 30 years ago, this guy [who was shot at a group home for adults with traumatic brain injuries; March 22, 2011] would have been committed.


“Or let’s look at Joe Zontelli [August 11, 2014]. Here’s a guy with a mental illness. Here’s a guy trying to kill himself; that’s a mental illness.”


Or the guy who was shot 12 times by a SWAT sergeant after robbing a Walgreen’s pharmacy [August 28, 2011]. “Personally, I think he had a chemical induced psychosis. That’s a mental illness, isn’t it?”


It is a mental illness, but there are problems with Ramsay’s theory. Deinstitutionalization of the mentally ill goes all the way back to the 1963 Community Mental Health Act and really began in earnest in 1981 when then-President Ronald Reagan cut off federal funding for mental health services, shuttering psychiatric hospitals across the country and turning patients over to the vagaries of the free market—or the streets.


A significant amount of data since then suggest that the homeless (or housing insecure) mentally ill are much more likely to become the victims of crime than the perpetrators of it, but, either way, such a phenomenon would still represent a crime increase to the police. It just doesn’t explain a spike in use-of-force as late as 1999.


Other theories have been bandied about in the national media, from the militarization of domestic police, as they receive high-grade equipment left over from Iraq (last year, Superior received an “armor-plated, mine-resistant, ambush-protected” tank; certainly, if the rebel army ever tries to take Billings Park, they’ll have another think coming), to a rise in civilian gun ownership since the early ’90s (the debate rages on as to whether gun ownership increases or decreases crime, but either way it would mean police officers today are more likely to find themselves staring down the barrel of a gun).


Another theory is directly linked to 1999—the Columbine High School massacre. In the wake of the largest school shooting at the time, police were heavily criticized for tactics that were standard operating procedure for patrol: Secure the perimeter. Sweep the building room-by-room. Tend to the wounded. Such time-consuming efforts cost, or nearly cost, several victims’ lives.


In the years since Columbine, more and more patrol officers have been trained in what were previously special forces techniques, leading to what a USA Today report characterized as a “shoot first” mentality.


Meanwhile, violent crime rates across the country peaked in 1973 and have declined ever since, currently at all-time lows, according to the Bureau of Justice Statistics. At the same time, the public’s perception of the crime rate has skyrocketed. A 2014 YouGov poll of major US cities found that more than half the respondents felt “fairly unsafe” or “very unsafe,” without significant differences by gender, age, race, income, or political affiliation. This was even true in New York where the violent crime rate dropped 71 percent between 1993 and 2012.


There’s no reason to believe police are immune to this illusion of increasing violence. “These guys and gals are making split-second decisions,” says Ramsay. “They’re not special—well, they’re special to me—but they’re not any different than the average person on the street.”


When an officer uses deadly or potentially excessive force, the circumstances are usually investigated by a state law enforcement agency (in Minnesota, the Bureau of Criminal Apprehension) and the results of the investigation are submitted to local prosecutors for a decision as to whether criminal charges should be filed.


Local county or district attorneys have discretion to make a charging decision themselves, or to send the case to an independent prosecutor. Burghart says use of independent prosecutors is very rare, but locally that has not been historically true, with only one exception—current St. Louis County Attorney Mark Rubin.


Rubin’s predecessors, including 28-year former County Attorney Alan Mitchell, commonly—though not always—sent use-of-force charging decisions to independent prosecutors. (Not all the archived media reports even mention a charging decision, though most of the Duluth reports do.)


Elected in November 2010, Rubin has overseen by far the most deadly spate of police use-of-force in Duluth’s history, but has made all but one of the charging decisions himself. The Richard Jouppi case [September 21, 2012] was charged by the City of Duluth, which sent it to an independent prosecutor in Hermantown. Rubin says the case against Jouppi did not go through the County Attorney’s Office because it did not involve “substantial bodily harm,” and was therefore a misdemeanor.


As for the rest, “If I had any doubts about our ability to review impartially, I wouldn’t hesitate to refer out, but there has not been a need...Generally, it would depend on the relationship of the prosecutor with the officers.”


However, judging by the media archives, Rubin has sought independent prosecutors (often in Lake County) when an officer is accused of committing a crime while off-duty. “We’ll refer those out because they don’t involve a lot of effort...Let me emphasize that if I felt that the conflict was too great or it was a decision that we could not make fairly and objectively, I would never hesitate to refer a matter out for review by another prosecutor’s office.”


But in Burghart’s opinion, the conflict is too great by definition, because police work so closely with local prosecutors. “They’re always going to find it justified. These are the people who send the police out with a warrant.”


In terms of civilian oversight, Superior is far ahead of Duluth. Wisconsin has had a statute requiring “Police and Fire Review Commissions” since 1910. The commission of five citizens appointed by the mayor has no supervisory role, but it can inspect police and fire records.


Minnesota is a century behind. Duluth was the fourth city to create a Citizen Review Board (CRB) in 2012, after Minneapolis, St. Paul, and St. Cloud. So far, the young CRB has spent most of its time going through various police trainings and examining department policies, like how to make the officer hiring process more open to women and people of color, according to Doug Bowen-Bailey, who is finishing his three-year term on the CRB.


“The ordinance was written in such a way that the CRB has no influence over the disciplinary process,” says Bowen-Bailey. “A case goes through the disciplinary process first, then goes to the CRB...We’ve started looking at cases, but that hasn’t been a big focus yet because the department is still looking at how to get cases to us.”


Ramsay says the CRB will never review open cases, citing Minn. Stat. 626.89 sub. 17. “They have no investigation power. They’re an oversight board...They don’t see cases until the final product, and they don’t get complaints until the entire investigation is done.” Even then, he says some information may never be available to the CRB.


Minn. Stat. 626.89 sub. 17 came about in 2012 after a highly contentious debate between the Minneapolis Police Department and the 22-year-old Minneapolis Civilian Review Authority. The law states, in full:

A civilian review board, commission, or other oversight body shall not have the authority to make a finding of fact or determination regarding a complaint against an officer or impose discipline on an officer. A civilian review board, commission, or other oversight body may make a recommendation regarding the merits of a complaint, however, the recommendation shall be advisory only and shall not be binding on nor limit the authority of the chief law enforcement officer of any unit of government.

According to an official at the state Information Policy Analysis Division (which provides advisory opinions about Minnesota data practices), this law does not classify any data as public or non-public. Therefore, it does not speak to what information the CRB can or cannot receive.


“It depends on the structure of the group—how it’s created, by whom, for what purpose. If they are appointed by the Chief or the City or the County, the Board may be considered ‘within the entity’ for purposes of having access to not-public data. If the Board is not within the entity, it cannot have access to not-public data...Just because [Duluth’s] CRB is limited to ‘inactive cases’ does not necessarily mean it is outside the entity.”


Burghart has little faith in CRBs to keep use-of-force in check. Too often they devolve into little more than a public relations arm of the police department itself. “That’s their bailiwick. CRBs are not effective. They’re just not.”


He believes it’s going to take federal action to enforce the Death in Custody Act of 2000, which, in theory, requires law enforcement to report fatalities, but, in practice, most departments do not report adequately. “Look at the number [of cases] where the names are not being reported. In Philadelphia, for example, they don’t report the name of the officer or of the person killed.”


According to Ramsay, Duluth Police report fatal and non-fatal police shootings to the Department of Public Safety. He could not recall specifically what information is required, and agreed to release the most recent reports to the Zenith, but they were not released by press time.


“I believe there are reasons [the police] don’t want to confront this,” says Burghart. “And it’s not just race or the things we think it might be. They don’t want the federal government involved. Can you imagine the federal government going in and telling a little one-person constable how to run his office?”


Last November, FatalEncounters.org received a grant from the Media Consortium, and Burghart hopes to place a data request with every single state and local law enforcement agency in the country. “If we have real numbers, across real time, we can see who’s having the best outcomes—which is not killing people.”

 

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