How It Could Happen Here

A headline in today's newspaper asks, "How Could It Happen Here?" The article refers to the recent hpd shooting death of Brian Claunch, a mentally challenged double amputee. One reason it could happen here is that courts have removed accountability from those who have been given power.

The shooting occurred last week when Claunch, a man with a history of psychiatric treatment, purportedly threatened officers with what turned out to be a ball point pen.

Lawsuits attempting to hold officers accountable for killing suspects typically allege a "§ 1983" claim. This provision of federal law provides you with a civil remedy when someone acting under the color of law violates your constitutional rights. In particular, an unjustified "beat down" or shooting by the police violates your Fourth Amendment right to be free from unreasonable searches and seizures.

Despite the intent of § 1983, there two principal difficulties with such claims. On a factual level, jurors and courts often give the benefit of the doubt in disputed cases to the officers. The officers are the ones who protect us, and the victims often have violated the law, either on that occasion or an earlier one. So, when officers counter the testimony of the suspects and say they were simply using the force required of the situation because the suspects refused to comply, fact finders usually believe them. Rodney King's case became famous, and he won his claim, not because the facts were different from numerous other cases, but because a videotape showed jurors, and the American public, what actually occurred.

A second and bigger hurdle than the factual contest is the legal one. Courts have created standards providing broad immunity for officers. "Immunity" is just what it sounds like. The officer can take wrongful action, but he and his department can still be immune from any legal consequences. The United States Fifth Circuit Court of Appeals, which handles appeals from federal courts in Texas, has rendered numerous decisions exonerating officers from liability in cases involving shootings of unarmed suspects. One rule that it uses limits review of an officer's conduct to the moment of the shooting, ignoring his actions beforehand which escalated an otherwise manageable circumstance to a life-threatening confrontation. In other words, if the officer's own behavior precipitated a situation that led to the circumstances in which he felt threatened and shot at close range an unarmed suspect, that conduct is excluded from legal scrutiny in this circuit. Other circuits have rejected this approach. If the Supreme Court rules in the appeal of the case of Elizondo v. The City of Garland, it will determine whether a full analysis should be used. Until then, the culture of power without legal accountability will continue, as doubtless will the shootings.

If you or someone you know has been a victim of abuse by the police, contact the attorneys at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend by calling 713-222-7211 or 1-800-870-9584.

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