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Submitted 11:47 p.m.
12.14.2014
Letter to the Editor

A National Solution for a National Problem”

Dimitri Dube and John Ennis of Dallas, TX

Each Law & Order episode begins: “In the criminal justice system the people are represented by two separate, yet equally important groups: the police who investigate crime and the District Attorneys who prosecute the offenders.”

This is patently untrue. Most police departments and district attorney’s offices are so intertwined that they cannot be considered separate entities. This closely integrated system works well for prosecuting most crimes. However, as the unrest resulting from the Ferguson, Missouri and Staten Island, New York decisions show, this system neither works well nor inspires public confidence when the criminal allegation is the use of excessive force by the police against the people they are entrusted to protect and serve. The authors are two friends on opposite sides of most ideological spectra - one, a black immigrant Democrat, and the other a white East-Coast born Republican. We came of age in the same town in New Jersey, excelled scholastically and athletically at the same elementary school, and then our paths and ideologies diverged. Across 25 years, however, we have remained close friends and share a mutual respect for each other's well developed frame of thought.

This piece is not an attempt to re-try either of the two criminal cases in Ferguson or Staten Island; rather it argues for a more principled framework for dealing with these incidents on a national level moving forward. Specifically, we propose that the Department of Justice create a Police Brutality Unit to investigate and prosecute every police shooting to determine whether the use of force violated the victim's rights to be free from excessive force under federal civil rights laws and the Constitution.

As these investigations have progressed, the Department of Justice has deferred to each local investigation. While that deference is understandable, it is a strategic error. At the core of that error is a lack of attention paid to the following principle espoused by our nation’s founding fathers opposing oppressive Royal Rule: the State cannot investigate itself.

How can cops investigate cops within their own departments? How can local prosecutors reasonably bring or recommend charges against police officers that they work with every day? And in those circumstances when the police and prosecutors are too closely aligned, who actually represents the people?

Moreover, local investigations/prosecutions typically focus on whether the police officer committed murder or some other level of homicide. This is the wrong inquiry, as these investigations place the focus on the tragic outcome rather than the conduct of the officers.

The sacred trust between an officer and the community is not broken solely because the police officer killed someone; the unfortunate albeit necessary outcome is that law enforcement officers are occasionally required by circumstance to kill some person or people to safeguard others they are charged to protect. Rather, that trust between the police and the community is broken when an officer exceeds his/her authority by using excessive force. Thus, the issue in a prosecution should be: Did the officer intend to use more force than necessary to effectuate the arrest? The issue of the harm caused by that initial culpable or guilty conduct - i.e. whether simple injury, serious bodily injury, or death results - should only determine the level of sentence that is triggered. That is precisely what an investigation under the federal civil rights law permits.

There are also other benefits to our proposal. It creates a system. A police brutality unit can create standardized procedures and guidelines that must be followed in every police shooting – regardless of whether the shooting incited racial tensions, riots, or never reached the pages of a newspapers or a television screen. This could alleviate some of the investigatory problems we saw in Ferguson. Additionally, standardizing these investigations and prosecutions would permit better data collection and research to determine why our officers shoot and kill our citizens more often than other societies- at a time when our overall crime rates are falling. In many cases, it would also broaden and diversify the grand jury pools since federal districts pull in potential jurors from several surrounding cities and communities.

In the wake of these events, the President has repeatedly stated that this is a national problem. This national problem therefore requires a national solution that resolves the inherent conflict and potential for injustice that results when one arm of the state is entrusted with investigating the other arm. Resolving that conflict may result in an outcome we all desire, less of these shootings.

Dimitri is a graduate of NYU Law & a former law clerk for Theodore McKee, Chief Judge of the Third Circuit of the United States Court of Appeals. He currently practices criminal defense law at Dimitri Dube, P.C. in Dallas, TX.

John Ennis is a graduate of the United States Naval Academy. He is co-author of the L.A. Times Bestseller, In the Shadow of Greatness, and advised the Romney Campaign on Defense Policy.