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Cedar Rapids, Iowa 52401
CEDAR RAPIDS - A Cedar Rapids lawyer who specializes in civil rights said although most condemn the actions of the Minnesota police officers accused of killing George Floyd, 'police brutality” won't stop unless law enforcement is held accountable.
David O'Brien has sued Iowa police officers for using excessive force and violating his clients' rights. Through those experiences, he said he has gained great respect for officers who are 'out there every day performing a difficult and, at times, dangerous job without violating people's civil rights.”
He does, however, take issue with the ones who 'stopped believing that the lives of the people they are sworn to protect and serve” are valuable, citing Minnesota officer Derek Chauvin, 44. Chauvin is charged with pinning 46-year-old Floyd to the ground last month by kneeling on his neck for more than eight minutes until Floyd died.
On Wednesday, Chauvin's charge of third-degree murder was upgraded to second-degree murder, and the three other officers who helped restrain Floyd were charged with aiding and abetting second-degree murder.
In addition to his legal experience, O'Brien is the father of two black sons in their early 20s, whom he and his wife adopted as kids. He feels the risk is greater today that his sons may be in the 'wrong place at the wrong time and encounter the wrong officer,” resulting in 'devastating” consequences.
Law enforcement's job is to hold people accountable for breaking the rules, but they also must follow those rules themselves and uphold constitutional rights, he said.
Civil Rights Lawyer Offers Suggestions For Police Reform
O'Brien suggests three reforms to improve the system - create citizen review boards to evaluate claims against law enforcement, preserve all documents and evidence for the review board to consider, and toss out 'qualified immunity,” which allows law enforcement to avoid civil liability for wrongful acts.
At first blush, it doesn't sound difficult to prosecute law enforcement if they break the law, but nobody wants to penalize co-workers or family, O'Brien said.
'Doctors and lawyers don't like to accuse other doctors and lawyers of malpractice. Law enforcement and prosecutors feel the same.”
But many Iowa counties have the county attorney make charging decisions in officer shootings.
O'Brien said it makes more sense to have independent sources investigate and prosecute such cases.
That's why he would like to see an independent board made up of citizens, including minorities, and law enforcement. They could act like a grand jury to determine if probable cause exists and appoint a special prosecutor if warranted.
The board also should have access to all law enforcement reports, witness statements and evidence, O'Brien noted. In his experience working on lawsuits for wrongful death claims against departments and officers, some information isn't included.
O'Brien represented a family who brought a wrongful death suit against the Burlington Police Department in the fatal shooting of Autumn Steele. Not all the witness statements about Steele's dog, which jumped up on Officer Jesse Hill, were included in the reports. Hill and the department claimed the dog was aggressive and that's why he fired his weapon twice. One shot struck Steele, killing her in front of her young son.
The federal lawsuit resulted in a $2 million settlement for Steele's family after a three-year legal battle with law enforcement over releasing sealed witness statements, body-camera footage and hundreds of court records.
‘Legislation would need to be passed,' Prosecutor Says
First Assistant Linn County Attorney Nick Maybanks said many law enforcement departments in Iowa request that the Iowa Division of Criminal Investigation investigate officer-involved shootings to promote transparency and objectivity.
'I believe that is a good step to take but to mandate it, legislation would need to be passed,” Maybanks said.
The same would be true in order for county attorneys to seek the appointment of independent prosecutors.
'Some county attorneys will be willing to do so on their own and others will not because they believe reviewing and prosecuting, if necessary, all criminal cases, even those in which police officers are suspects, is their duty and what they were elected to do,” Maybanks said.
The Cedar Rapids Police Department, in a statement, said Chief Wayne Jerman has been and will continue to be open to discussions about reforms that 'help build relationships and trust between the department and the community.”
'It is important to have a thorough review of each proposal to assure that all aspects are considered, including what is permissible jurisdictionally and what preserves the legal rights of all involved in an incident,” city officials said.
Marion Police Chief Mike Kitsmiller said he wasn't a 'fan” of review boards because there is already a system for independent review by a grand jury, which has more authority. Grand jurors can subpoena witnesses and access all reports and documents.
'You should just be transparent and show people it's fair,” Kitsmiller said.
Growing Push to End ‘Qualified Immunity' for Officers
O'Brien also suggested getting rid of qualified immunity, a defense available to law enforcement being sued in federal court, which absolves law enforcement of wrongdoing if the civil right they violated wasn't 'clearly established” at the time.
There is case law that shows some 'absurd” results that failed to hold officers accountable, O'Brien said.
He pointed out qualified immunity is already under attack from a diverse coalition of legal experts. Those experts have said the result of qualified immunity is that officers often get away with 'horrible conduct.”
Kitsmiller, who was the civil rights program coordinator with the Iowa and Nebraska FBI offices, said qualified immunity is a 'hot button” issue right now, but he argued it isn't a 'blanket” protection. There is a purpose for the doctrine when officers are under 'extreme circumstances” and forced to make split-second decisions, he added.
U.S. Rep. Justin Amash, L-Mich., this past week introduced a bill that would eliminate qualified immunity, calling it a 'permanent procedural roadblock for plaintiffs” that prevents them from receiving damages when their rights are violated.
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