Jamar Clark was unarmed when Minneapolis police officers shot him in the head on Nov. 15, 2015. He died a day later from his injuries. Witnesses state that he was handcuffed and not resisting when he was shot. Police union leader Bob Kroll (who reportedly belonged to a motorcycle club whose members allegedly displayed white supremacist symbols, according to the Anti-Defamation League) claims that Clark attempted to grab an officer’s gun.
Video evidence from the scene is being withheld while the Minnesota Bureau of Criminal Apprehension and the U.S. Department of Justice investigate. Hennepin County Attorney Mike Freeman plans to convene a grand jury to determine whether criminal charges are warranted against officers Dustin Schwarze and Mark Ringgenberg. But several community groups fear this will allow the officers to escape accountability. A petition from Neighborhoods Organizing for Change calling on Freeman to forgo the grand jury and prosecute directly has over 2,700 signatures. Speaking at a Feb. 1 forum, Minneapolis NAACP President and University of St. Thomas law Prof. Nekima Levy-Pounds was blunt: “We do not trust the system to produce justice.”
Grand jury proceedings are generally secret, include evidence only from the prosecution and have a lower standard of proof than criminal trials. In practice, grand juries function as a rubber stamp; the Washington Post analyzed available 2009-2010 data and reported that “federal grand juries indict 99.99 percent of the time.”
There is one striking exception to the virtually automatic process of obtaining an indictment: police officers who shoot civilians. Here rates of indictment are shockingly low, with very few cases making it through to a criminal trial — let alone a conviction.
Minnesota Public Radio has reported that since 2008 at least 60 people have been killed by police in Minnesota. Not one of the 87 officers who fired shots in these incidents has been indicted. This is often true even when large settlements are paid out. After losing a lawsuit in 2010, the city of Minneapolis agreed to pay $2.2 million to the family of Dominic Felder, an unarmed man killed by police. A grand jury failed to indict the two officers, who claimed that Felder grabbed a police gun, although his fingerprints were not found on the weapon.
Recently, Levy-Pounds described how prosecutors dictate grand jury outcomes. “Prosecutors have an abundance of influence over the grand jury. So if they want an indictment, they’re able to present evidence in such a way that would result in an indictment. Vice versa is also true. If they’re not interested in an indictment, they’re able to present information that makes it significantly less likely that an indictment will occur.”
Prosecutors, many of whom are elected officials, depend upon the work of the police to secure convictions in their cases. This raises concerns about their impartiality when handling cases involving potential police misconduct.
In just one example, Kenny Smith was killed in Cleveland when an officer claimed that Smith reached for a gun inside a car. However, witnesses said Smith was shot outside the car, consistent with forensic evidence including the location of bloodstains. A jury awarded the family $5.5 million in 2015. After a perfunctory grand jury investigation, prosecutor Timothy McGinty (best known for failing to secure an indictment against the officer who shot 12-year-old Tamir Rice) not only declared the shooting justified, but wrote that the officer “correctly and heroically took action.” Similar false narratives have been used on countless occasions to reinforce notions of white heroism and black criminality.
Race is an unavoidable factor in this conversation. Black people of all genders are disproportionately victims of state violence. Clark, Felder, Smith and Tamir were all young black men. In 2015, young black men were nine times more likely than other Americans to be killed by police. Among elected prosecutors, 95 percent are white and are less likely to have personally experienced police aggression.
Members of a primarily white grand jury might identify with a white police officer more than with a black victim, making it even less likely that they would reach the majority vote required for an indictment. A recent Star Tribune poll found that while 97 percent of whites in Minnesota have a favorable view of law enforcement, only 26 percent of blacks do. A majority of white Minnesotans disagree (inaccurately) with the premise that police are more likely to use deadly force against a black person than a white person. There are far too many young black males who can remember experiencing biased policing, while whites may go their entire lives without one incident of mistreatment.
County prosecutors must stop using grand juries to justify police killings. Specific policy reforms that should be implemented include: 1) independent investigations of all cases where police kill or seriously injure civilians; 2) the establishment of a permanent special prosecutor’s office at the state level for cases of police violence, and 3) adjusting the standard of proof for Justice Department civil rights investigations to eliminate the requirement that an officer must “willfully” deprive another of rights in order to violate federal law. (These are detailed at the website for Campaign Zero at joincampaignzero.org.)
The Neighborhoods Organizing for Change petition closes by calling on Freeman “to appoint a special prosecutor from a county demographically similar to Hennepin County, and forgo the grand jury process.” This can and should be done immediately.
The Minneapolis NAACP reiterates its #Justice4Jamar demands: release the tapes, no grand jury, direct prosecution. Black people deserve to be treated equally under the law; if equal treatment is not voluntarily given, we are willing to fight for it. We ask those who share our conviction to call Freeman and make your voices heard.
Jason Sole teaches criminal justice at Hamline University and Metropolitan State University and is chair of the Minneapolis NAACP Criminal Justice Reform Task Force. Rachel Wannarka is a task force member and a special education teacher at Boys Totem Town in St. Paul.