What Philando Castile verdict says about path of police reform

Settlements may be provoking a form of private sector oversight on police departments – namely through the pressures liability insurers impose on the departments they’re covering.

For the families who have lost loved ones, it may seem that little has changed in how and when officers exercise lethal force, particularly against African-American men. And increasingly, many experts are concluding that the courts may be ill-equipped to lead the debate in how and whether policy reform is needed.

“My son loved this city, and this city killed my son and let the murderer get away with it,” a tearful Valerie Castile said last week, shortly after a jury acquitted St. Anthony, Minn., police officer Jeronimo Yanez of all charges relating to his fatal shooting of her son, Philando. Mr. Yanez left the department under a voluntary separation agreement.

“Let it be known that I believe in my heart that Betty Shelby got away with murder,” said Joseph Crutcher last month, shortly after a jury acquitted Officer Shelby, of the Tulsa, Okla., police department, of all charges relating to her fatal shooting of his son, Terence.

The Crutcher and Castile families now appear to be following in the footsteps of other grieving families at the heart of the country’s national debate over police use of force. Police officers are rarely convicted criminally. Only one officer involved in a controversial post-Ferguson police shooting has been convicted: Michael Slager, who fatally shot Walter Scott in North Charleston, S.C., in April 2015. Families have had much more success with civil rights lawsuits, with many having settled with municipalities for millions of dollars.

But while such settlements may bring a measure of acknowledgment for grieving families, they may not directly change the underlying police behavior.

This may be somewhat ironic, since deterrence “is one of the underlying principles of criminal law,” says Kami Chavis-Simmons, a former assistant United States attorney.

Convicting police officers is challenging, since the law gives them broad latitude in justifying their use of lethal force. And even large civil settlements have little deterring effect because the costs are typically shouldered by municipalities and covered by insurers.

“In some ways we want it to be that way because we don’t want to chill officers in their duties,” says Professor Chavis-Simmons, who now directs the Criminal Justice Program at the Wake Forest University School of Law. “We have to think of different ways of holding officers accountable.”

Activists and reformers could instead focus on pressing for changes to internal policies and procedures within police departments, particularly through using their ballot box power to elect mayors, district attorneys, and other officials willing to implement such policies.

Civil settlements can help engineer some private-sector pressure on police departments to reform, namely from the liability insurers who have to pay out multimillion-dollar settlements.

Because individual officers are paid very little, the municipalities they work for are often the target in civil suits. Police departments themselves rarely see a financial hit – from 2006 through 2011, governments paid 99.98 percent of what plaintiffs recovered in civil rights lawsuits against the country’s 44 largest law enforcement agencies, according to a 2014 study in the New York University Law Review. Most departments likely “view these lawsuits as the cost of doing business,” says Philip Stinson, an associate professor of criminology at Bowling Green State University in Ohio, who has been tracking police arrests and prosecutions for over a decade.

A settlement “doesn’t have a direct deterrent effect on an officer because it doesn’t come out of their pockets,” he adds.

Settlements could be provoking a form of private sector oversight on police departments, however – namely through the pressures liability insurers could impose on the departments they’re covering.

Insurers have been pressuring smaller police departments around the country, The Atlantic reported earlier this month, threatening to withdraw coverage if reforms aren’t made. Such a development could be of added significance under a Trump administration that has expressed a desire to minimize federal oversight of police.

“Insurers have a much bigger role to play in a world where the DOJ is not going to be aggressive, and we’re going to have to rely on private plaintiffs to bring lawsuits and seek money damages,” Michael Rappaport, a University of Chicago law professor who has researched the dynamic, told The Atlantic.

Such innovative mechanisms for police reform may be necessary in the future, says Tod Burke, a criminal justice professor at Radford University in Virginia and a former Maryland police officer, especially since criminal cases against officers will continue to be difficult to prove.

“It’ll happen through policy more than anything,” he adds. “Officers are reacting based on their training, they should not be thinking at the time: ‘Are my actions going to get me fired? Or get me into a lawsuit?’ ”

Clarification: This article has been updated to reflect the nature of Yanez's separation agreement with the St. Anthony Police Department in Minnesota.