ACLU Fighting Police Abuse A Community Action Manual


You’ve got to address specific problems. The first step, then, is to identify exactly what the police problems are in your city. What’s wrong with your police department is not necessarily the same as what’s wrong in that of another city. Police departments differ in size, quality of management, local traditions and the severity of their problems. Some departments are gravely corrupt; others are relatively “clean” but have poor relations with community residents. Also, a city’s political environment, which affects both how the police operate and the possibilites for achieving reform, is different in every city. For example, it is often easier to reform police procedures in cities that have a tradition of “good government,” or in cities where racial minorities are well organized politically.

The range of police problems includes —

1) Excessive use of deadly force.

2) Excessive use of physical force.

3) Discriminatory patterns of arrest.

4) Patterns of harassment of the homeless, youth, racial minorities and gays, including aggressive and discriminatory use of the “stop-and-frisk” and overly harsh enforcement of petty offenses.

5) Chronic verbal abuse of citizens, including racist, sexist and homophobic slurs.

6) Discriminatory non-enforcement of the law, such as the failure to respond quickly to calls in low-income areas and half-hearted investigations of domestic violence, rape or hate crimes.

7) Spying on political activists.

8) Employment discrimination — in hiring, promotion and assignments, and internal harassment of minority, women and gay or lesbian police personnel.

9) The “code of silence” and retaliation against officers who report abuse and/or support reforms.

10) Overreaction to gang problems, which is driven by the assumption that those who associate with known gang members must be involved in criminal activity, even in the absence of concrete evidence that this is the case. This includes illegal mass stops and arrests, and demanding photo IDs from young men based on their race and dress instead of on their criminal conduct.

11) The “war on drugs,” with its overbroad searches and other tactics that endanger innocent bystanders. This “war” wastes scarce resources on unproductive “buy and bust” operations to the neglect of more promising community-based approaches.

12) Lack of accountability, such as the failure to discipline or prosecute abusive officers, and the failure to deter abuse by denying promotions and/or particular assignments because of prior abusive behavior.

13) Crowd control tactics that infringe on free expression rights and lead to unnecessary use of physical force.

HOW MUCH BRUTALITY?How common is police brutality? Unfortunately, measuring this problem in a scientific   fashion has always been very difficult. In the first systematic study, The   Police and the Public (1971), Albert Reiss found the overall rate of   unwarranted force to be low — only about one percent of all encounters with   citizens; even less than that by another calculation. But Reiss hastened to   point out that individual incidents accumulate over time, and since poor men   are the most frequent victims of police abuse, they experience both real and   perceived harassment by the police.In 1982, the federal government   funded a “Police Services Study,” in which 12,022 randomly selected   citizens were interviewed in three metropolitan areas. The study found that   13.6 percent of those surveyed had cause to complain about police service in   the previous year (this included verbal abuse and discourtesy, as well as   physical force). Yet, only 30 percent of the people filed formal complaints.   In other words, most instances of police abuse go unreported.Community activists, take note:   Your local police department or local news media may produce official figures   showing a low rate of alleged abuse, but those figures do not reflect   unreported incidents. Moreover, a low overall rate masks the higher rate of   abuse suffered by poor men — poor men of color in particular.


Obtaining the most relevant information on the activities of your police department can be a tough task. That’s the first thing to bear in mind about the “homework” community residents have to do in order to build a strong case for reform. In answer to critics, police chiefs often cite various official data to support their claim that they are really doing a great job. “Look at the crime rate,” they say. “It’s lower than in other cities.” Or: “My department’s arrest rate is much higher than elsewhere.” The catch is that these data, though readily available to citizens, are deeply flawed, while the most important information is not always easy to get.

Forget the “crime rate.” The “crime rate” figures cited by government officials are based on the FBI’s Uniform Crime Reports (UCR) system, which has several serious flaws. To name only a few: First, the UCR only measures reported crime. Second, since the system is not independently audited there are no meaningful controls over how police departments use their crime data. Police officers can and do “unfound” crimes, meaning they decide that no crime occurred. They also “downgrade” crimes — for example, by officially classifying a rape as an assault. Third, reports can get “lost,” either deliberately or inadvertently. There are many other technical problems that make the UCR a dubious measure of the extent of crime problems.

The National Crime Survey (NCS), published by another part of the U.S. Justice Department, provides a far more accurate estimate of the national crime rate and of long-term trends in crime. But it is a national-level estimate and does not provide data on individual cities. So the NCS isn’t much help on the local level.

Forget the “clearance rate.” A police department’s official data on its “clearance rate,” which refers to the percentage of crimes solved, do not accurately reflect that department’s performance. The fact that one department “clears” 40 percent of all robberies, compared with 25 percent by another department, doesn’t necessarily mean it is more effective. There are too many ways to manipulate the data, either by claiming a larger number of crimes “cleared” (inflating the numerator), or by artificially lowering the number of reported crimes (lowering the denominator).

Forget the arrest rate. Police officers have broad discretion in making and recording arrests. The Police Foundation in Washington, D.C., which conducts research on policing issues, has found great variations among police departments in their recording of arrests. In many departments, police officers take people into custody, hold them at the station, question and then release them without filling out an arrest report. For all practical purposes, these people were arrested, but their arrests don’t show up in the official data. Other departments record such arrests. Thus, the department that reports a lower number of arrests may actually be taking more people into custody than the department that reports more arrests.

Forget the citizen complaint rate. Official data on the complaints filed by citizens regarding police conduct are important but present a number of problems. Many departments do not release any information on this subject. Some publish a smattering of information on complaints and the percentage of complaints sustained by the department. In more and more cities, a civilian review agency publishes this data.

Data on citizen complaints are difficult to interpret.

Some examples —

  • In 1990,      it was widely reported that San Francisco, with less than 2,000 police      officers, had more citizen complaints than Los Angeles, which has more      than 8,000 officers. What that may mean, however, is that Los Angeles      residents are afraid to file reports or don’t believe it would do any      good. San Francisco has a relatively independent civilian review process,      which may encourage the filing of more complaints. Also in 1990, New York      City reported a decline from previous years in the number of citizen      complaints filed. But many analysts believe that simply reflected New      Yorkers’ widespread disillusionment with their civilian review board.      Citizen complaints filed in Omaha, Nebraska doubled after the mayor      allowed people to file their complaints at City Hall, as well as at the      police department.
  • Another problem      is that in some police departments with internal affairs systems, officers      often try to dissuade people from filing formal complaints that will later      become part of an officer’s file. And the number of complaints counted is      also affected by whether or not the internal affairs system accepts      anonymous complaints and complaints by phone or mail, or requires      in-person, sworn statements.

Thus, the official “complaint rate” (complaints per 1,000 citizens), rather than being a reliable measure of police performance, more than likely reflects the administrative customs of a particular police department.


A. Police shootings. You need to know about police firearm discharges, which refer to the number of times a police weapon has been fired. This information is more complete than statistics on the number of persons shot and wounded or killed. (However, information on the race of persons shot and wounded or killed is important.) Particularly important is data on repeat shooters, which can tell you whether some officers fire their weapons at a suspiciously high rate.


  •   Do some   officers shoot more often than others?
  •   Do white   officers shoot more often that black officers?
  •   Do young   officers shoot more often than veteran officers?

The most detailed analysis of   police shootings was produced by James Fyfe, a former police officer who is   now a criminologist and expert on police practices. He concluded that the   single most important factor determining patterns of shooting is place of   assignment.

Fyfe’s findings showed that: Black   and white officers assigned to similar precincts fired their weapons at   essentially the same rate; since new officers are assigned to less desirable,   high crime precincts based on the seniority system, younger officers shoot   more often than older officers; and since a disproportionate number of black   officers are young due to recent affirmative action programs, black officers   shoot more often than white officers — but as a function of assignment, not   race.

Fyfe found significant differences   in shooting patterns between police departments. The overall shooting rate in   some departments was significantly higher than in others, a disparity that he   attributed to differences in department policy.

SOURCE: James J. Fyfe, “Who Shoots? – – A Look At Officer,   Race And Police Shooting.” Journal of Police Science And   Administration; Volume 9, December 1981; pp. 367-382.

With this information, you can evaluate the use of deadly force in your department. You can also evaluate the long-term trends in shootings. Are shootings increasing or decreasing? Has there been a recent upsurge? How does the department compare with other departments — are officers shooting at a significantly higher rate in your department than elsewhere?

B. Use of physical force. You need to know how frequently police officers in your city use physical force in the day-to-day course of their encounters with citizens. Do officers try to refrain from using such force against citizens, or do they quickly and casually resort to force?

In its report on the Los Angeles Police Department in the aftermath of the March 1991 beating of Rodney King, the Christopher Commission confirmed a long held suspicion: A small number of officers were involved in an extraordinarily high percentage of use-of-force incidents. Ten percent of the officers accounted for 33.2 percent of all use-of-force incidents. The Commission was able to identify 44 such officers who were not disciplined despite the fact that they were the subjects of numerous citizen complaints.

In 1981, the U.S. Civil Rights Commission found a similar pattern in Houston and recommended, as a remedy, that police departments establish “early warning systems” to identify officers with high rates of citizen complaints. Patterns in the use of physical force reveal a lot about the “culture” of a particular police department. Clearly, a department whose officers repeatedly engage in physically coercive conduct needs reform. Police officials often deny that their personnel are prone to using force inappropriately, so if your community believes it has a problem in this area citizens must be able to support their claims with existing data, or data they have gathered themselves.

C. Official policies. You need to know what your local police department’s formal, written policies are on how officers are supposed to behave in particular situations. How does the department treat domestic violence complaints? What is the policy on how officers are supposed to deal with homeless people? Does the department use canine patrols and, if so, under what circumstances?

In examining official policies, you need to evaluate them in comparison to recommended standards.

D. Lawsuits. You need to know how many lawsuits citizens have filed against your local police department. You’ll want to know what the charges were, the number of officers involved, whether certain officers are named repeatedly in suits, what was the outcome and, in the case of successful suits, how much the city paid in damages.

The number of lawsuits filed against a police department can be very revealing. For example, according to the Christopher Commission the taxpayers of Los Angeles spent $67.5 million between 1991 and 1995 to resolve lawsuits brought by victims of police abuse. In 1990 alone, New York City paid victims of police misconduct a record high of more than $13 million. This kind of information can be used to mobilize middle-class taxpayers and “good-government” activists, who can then be brought into a community coalition against police abuse.


These data indicate a clear   pattern of racial discrimination. The disparity between whites and blacks   shot and killed is extreme in the category of persons “unarmed and not38, No. 6 » Trying police officers for use of force

Trying police officers for use of force

These cases are notoriously hard to investigate and try; here’s the story of a police shooting in Houston that offers valuable lessons to prosecutors across Texas.
By Joe Owmby
Assistant District Attorney in Harris County

As is almost always the case when a police officer is tried for an offense involving the use of force under color of law, the inescapable hue the trial prosecutor faces is gray. Officers operate in a dangerous world and are often characterized as “just doing their job.” Jurors are not apt to second-guess their actions. Of the more than 100 cases submitted to Harris County grand juries in the last five years, only two police shootings have been true-billed. This article details the one where the officer was found guilty; in the other, the officer was found not guilty by a jury.

Houston is a big enough city that the DA’s office has an entire unit, the Police Integrity Division, responsible for determining whether incidents involving officers’ use of force will result in criminal charges. In every case, including the one I describe later where 14-year-old Eli Escobar was shot by Officer Arthur Carbonneau of the Houston Police Department, the investigation is referred to a Harris County grand jury to determine whether charges should be filed. Use of the grand jury follows our office’s policy when a citizen is injured or killed by a police officer’s firearm, regardless of whether investigators think criminal liability is involved. Consistently submitting serious accusations of police misconduct to the grand jury produces transparency in the judicial process and increases community confidence in the outcome.

For shooting Eli Escobar, the grand jury handed down an indictment for Officer Carbonneau, and we tried him for criminal homicide. After two hours of deliberation, a jury found him guilty of criminally negligent homicide and sentenced him to probation. The investigation and trial provides valuable lessons for prosecutors facing use of force cases.

The shooting

Ed Porter was on call for our office’s Police Integrity Division November 21, 2003, when he received a dispatch on a fatal shooting in an apartment complex in Houston’s near northwest side. The late afternoon call was not completely surprising as the complex is in an area known for violent gang activity. Porter had been an on-call prosecutor for over 15 years and Harris County had averaged nearly 30 shootings a year in the five years preceding, and there was no reason to assume this investigation would be complex or sensitive. In fact, a few weeks before, on Halloween night, the division had responded to a scene on the southwest side where a 15-year-old Hispanic youth had been fatally shot while attempting to flee from police. The investigation of that tragic incident had scarcely begun and the controversy in the media had hardly died down when this new call came in. One wishes that controversial incidents be separated by more than three weeks, but alas, that’s not how it happened during this particular stretch of time.     Harris County sends an attorney and investigator to each shooting scene, though some smaller municipalities in the county turn police shootings over to the sheriff’s department, which has overlapping jurisdiction. In every jurisdiction, no matter the size, I recommend that an assistant DA and investigator be on-call and dispatched to every incident that results in a fatality. Survivors of a shooting (or their attorneys) will be able to speak for themselves during the investigation, but a prosecutor must provide a perspective on events that may be missing in a fatality scene. The prosecutor will also insure that questions related to the legal elements justifying the use of force are addressed. It would be grossly unfair for a truly justified use of force to attract controversy because no one thought to document the answers to valid questions on the scene.

Arriving at the apartment complex, Porter found that 14-year-old Eli Escobar had been shot once above the right eye and lay dead on the sidewalk near the patio fence of apartment No. 35. Stippling—the particles of burned powder that are emitted from a gun along with the bullet and etch a pattern on whatever surface they encounter within 2 feet of the muzzle—was plainly visible on the teen’s face, meaning the shot had been fired from close range, most likely less than a foot. Even more disturbing was that among the Internal Affairs officers, homicide investigators, patrol officers, and evidence technicians grimly preparing to spend the next several hours documenting the scene, no one had a plausible hypothesis as to why the teenager was shot.

Initial scene investigation

The most important aspect of a police shooting is the initial scene investigation, which is the responsibility of the involved police agency; the DA’s office runs a parallel investigation. In this case, prosecutors Ed Porter and Don Smyth conducted preliminary interviews with witnesses and consulted with homicide investigators to ensure that witness statements were captured on audio or video tape. It is extremely important to aggressively canvass for witnesses. In a high-density residential neighborhood, many people may have noticed the initial police activity and seen the shooting. Rumors of what may have happened spread quickly, and folks who didn’t see anything may start giving “eyewitness” accounts to the news media. Sometimes police investigators decide that off-the-wall witness accounts are not worth tracking down, but I urge prosecutors to follow up even the most bizarre stories, even if the police agency won’t. The only way to squelch rumors and insure the integrity of the investigation’s final product is to track down every potential witness and dispel or confirm the credibility of each account.

Porter and Smyth started the parallel investigation, assuming Eli Escobar’s death was a criminal homicide.1 No matter how rigorous the integrity of the police investigation—and in Harris County it is extremely rigorous—it would be against human nature for the police to not seek justification for the actions of one of their own, and it’s vital that prosecutors thoroughly investigate every avenue.

For prosecutors, the initial scene is critical. Our investigations include the following: • the involved officer and sometimes civilian witnesses participate in a walk-through of the incident (though the officer cannot be compelled to participate);2 • their statements are recorded on video, but the involved officer is not in custody and his statement is voluntary; • from the walk-through, photographs of each witness’s point of view may be arranged; • the involved officer’s and any suspect’s weapons are charted, either at the scene or after secure transport to the firearms lab; • the functionality of the weapon(s) and the number of rounds fired, their brand, and their type are noted; • the weapons of officers who claim not to have fired are checked to document the examiner’s opinion; • blood spatter evidence and stippling on clothing is noted so the medical examiner can be notified of evidence collection priorities before the body is moved; and • next of kin are notified and in some circumstances the victim’s background is obtained during a recorded interview with a relative or companion who saw the decedent last.

Escobar’s shooting

The events leading up to Escobar’s shooting began when Officer Ronald Olivo was dispatched to an assault call at an apartment complex off Antoine Street. Olivo was joined by Officer Arthur Carbonneau; they met a man and his 10-year-old son. These two complainants explained that there had been a quarrel involving another juvenile named Oscar; a window was broken during the goings-on and Oscar was now likely in apartment No. 35 in the neighboring complex. Olivo, Carbonneau, the boy, and his father all went to that apartment to continue the investigation.

Eli Escobar and two friends, all age 14, were playing video games in that apartment. Eli was not usually allowed to hang out in the apartment complex after school; his father, Eli Escobar Sr., later testified that his son was under a strict curfew after school and that he was respectful of authority. Prosecutors also learned during interviews that the teenager was taught that if trouble started while he was with his friends, he should come home. The presence of the police at the apartment likely equated to trouble in Escobar’s mind, which might explain some of what happened next.

The investigation might have ended when the witnesses confirmed that none of the boys in the apartment was Oscar, nor were these teenagers involved in the quarrel that prompted the police call. However, the officers continued questioning the boys as they were detained on the patio. Escobar became agitated and pushed past Officer Carbonneau, reportedly saying he had done nothing wrong and was going home. Carbonneau began to struggle with the young man. Some witnesses reported that while Escobar was on his back and Officer Carbonneau was on top of him, the teen told Carbonneau he would submit. It appeared he was still twisting and resisting as Officer Olivo joined in the struggle by grasping Eli’s legs to control his lower body.

According to one witness, Escobar kicked Carbonneau in the groin before the shot was fired. Two women viewing from a balcony directly across the sidewalk said that Officer Carbonneau pulled his gun and fired while Escobar lay on his back. After the shooting, Carbon-neau “just walked away,” leaving Officer Olivo shocked and distraught at what had just occurred. Carbonneau was sitting in his car when the first officers responded to the scene; he complained of pain in his groin and was transported to the hospital along with his weapon, a 40-caliber Glock. He did not participate in a scene walk-through.

The key evidence at trial, first revealed and documented during the initial scene examination, was the stippling pattern on Escobar’s face. Its presence enabled a distance determination, which fixed the muzzle of the weapon 10 inches from Eli Escobar’s face. That distance, combined with the wound characteristics determined from the autopsy, fairly established the distance and angle from which the Glock discharged. Knowing the Glock’s position allowed a credible reconstruction of Carbonneau’s position when he fired the weapon.

The Glock’s functionality was immediately established by Kim Downs of the Houston Police Department Firearms Laboratory and eventually confirmed by the state’s expert witness at trial, Lucien Haag. The Glock handgun has a fairly unique safety mechanism: The safety is automatically engaged as long as there is no pressure on the trigger. The chance of an accidental discharge with a Glock without some human action to pull the trigger is remote.3

The question presented to the grand jury, as it would be in any similar case, was whether Escobar’s shooting was without justification. Police officers have the benefit of all justifications mandated in Chapter 9 of the Penal Code, including self-defense, necessity, and defense of third persons. The law applicable to justification in the Carbonneau case is contained in §9.51 of the Penal Code. Would a reasonable officer believe4 it was legal to detain Escobar in this situation? If so, the officer could use only non-deadly force unless he reasonably believed the subject had committed a crime involving the use of deadly force or that the subject presented such an imminent threat to the public that the arrest could not be delayed.5 If the detention were not legal, then the officer would not be justified in using deadly force.

In this case, the grand jury saw no evidence justifying the employment of deadly force; after sorting through the evidence, jurors indicted Officer Carbonneau for murder.

The trial

Don Smyth and I tried the case before Judge Mary Lou Keel in the 232nd District Court. In part because of publicity surrounding the case, a questionnaire was employed to aid in jury selection.6 The questionnaires allowed both parties to identify jurors who were influenced by the extensive media coverage. Voir dire in this case was more an exercise in explaining the ultimate issues, and the questionnaire saved time for that valuable function.

The defendant’s opening statement, as expected, laid the groundwork for his defense. According to defense attorneys Aaron Suder and Brett Ligon (now the district attorney-elect in Montgomery County), representing Carbonneau for the Houston Police Officers’ Union, Carbonneau had always wanted to be a police officer; he volunteered to take this call, and he made the best of a bad situation. The defense claimed that Eli Escobar flew off the handle, yelling, “Leave me the f— alone!” and pushed Carbonneau. Escobar had not been patted down for weapons, which according to the defense, heightened the officer’s apprehension. The defense also asserted that Carbonneau had no conscious recollection of pulling the trigger after he felt “something” hit his hand.

The defense next introduced Bill Lewinsky, a police consultant and expert witness who testified to a human reaction called the clutch reflex. The clutch reflex is a common reaction to a blow to the arm; a person holding a weapon will often react to that blow by clutching or squeezing an object in his hand, in this case the 40-caliber Glock Carbonneau had pointed at Escobar.

Don and I both realized this case would come down to the cross-examinations of Officer Carbonneau and expert Lewinsky. We decided that Don would cross Carbonneau and I would cross Lewinsky, but before that time arrived we had to establish a few irrefutable facts through the testimony of forensic firearms expert Lucien Haag and the eyewitnesses whose testimony he corroborated.

Before we presented the case to the grand jury, all of the witnesses were re-examined and each person was photographed while demonstrating the positions of Carbon-neau, Escobar, Olivo, and the weapon at the moment the shot was fired. The examinations produced some curious results. One witness positioned all the elements of the scene in mirror image, placing Carbonneau on Escobar’s left side instead of his right. (This witness did not realize his mistake until he attempted to recreate his testimony for the defense at trial.) One witness positioned the weapon in contact with Eli Escobar’s face, while another put the weapon 2 feet away.

Officer Olivo was positioned across Eli’s legs during the final moments of the struggle. Olivo was shocked by the weapon’s discharge; he never knew Carbonneau had even drawn his gun until it fired. Officer Olivo never offered a justification for employment of deadly force; he, like other peace officer witnesses, allowed that until a thorough search was conducted in any suspect encounter, anything is possible. He offered no testimony beyond speculation that would justify employment of deadly force at the time Carbonneau fired or at any point before that. Olivo said his colleague appeared dazed after the shot was fired. Carbonneau complained of an injury to his groin but never explained why he left his partner alone at the scene to face a gathering crowd of hostile bystanders.

We were unable to corroborate which story was most accurate until we received Lucien Haag’s analysis of the stippling evidence. Haag, a noted forensic firearms examiner, relied on his own test firings of Carbonneau’s Glock using the spare ammunition the officer was carrying at the time of the shooting. Haag recreated the stippling pattern on a type of paper that best simulates human skin. (In previous tests, Haag had concluded that next to pigskin, this paper produced the most accurate patterns from which he could count and compare the number of individual powder impacts per square inch.) Haag’s PowerPoint presentation included illustrations of the steps he used to reach his conclusion. The visual impact on the jury was compelling. The results corroborated and closely fit the eyewitness picture painted by Jose Salmeron, one of Eli Escobar’s young friends. Notably, this witness (and others) placed Officer Carbonneau in a position where it would have been difficult for Eli to strike the officer’s arm with any force before the weapon was fired. At this point Carbonneau was effectively boxed in; his account would have to agree with Haag’s unassailable findings.

Don Smyth’s cross-examination of the defendant effectively demonstrated Carbonneau’s lack of justification. What were the circumstances, from Carbonneau’s standpoint, that called for deadly force? Don asked Officer Carbonneau, “Why did you pull your gun and point it 10 inches from Eli Escobar’s face when both you and your partner had him subdued?” It is virtually a rhetorical question and one Carbonneau could not answer.

Defense expert Bill Lewinsky has a wealth of experience with police shootings. Although he testifies almost exclusively on behalf of police officers and might be accused of bias, his studies in reflex and motion offer valid insights that aid in reconstructing shootings. In many police shootings, reaction time—the time between an officer perceiving a threat and when he pulls the trigger—can be valuable in determining whether a shooting is justified.

In this case, however, Lewinsky relied solely on witness testimony that favored the defense theory and ignored witnesses who testified that Carbonneau was not likely in a position where his arm could be hit. Aside from that, Lewinsky’s testimony was limited to an explanation favoring involuntary discharge by reflex action because the possibility of weapon malfunction was clearly eliminated by Carbonneau’s prior statements that he didn’t intentionally pull the trigger and expert testimony concerning the functionality of the Glock. That was not the only question facing Carbonneau, however; equally important was why he pointed his weapon at Escobar in the first place. Lewinsky was not in a position to address that question.

We did not ask Carbonneau or Lewinsky these ultimate questions on cross-examination. Carbonneau was unable to adequately explain why application of non-deadly force—his metal baton or chemical spray, for example—was not sufficient to subdue Escobar, and Lewinsky’s opinion on the matter would have amounted to no more than pontification.

The issues narrowed, and the jury was charged with all three degrees of criminal homicide. Our emphases on closing were Officer Charbonneau’s clearly intentional acts that caused Escobar’s death, his employment of deadly force without justification, and the reckless or negligent act of placing his finger on the trigger. There was no proof of a motive to kill Eli Escobar—legally none was needed—but it is always difficult to prove to a jury that it was an actor’s conscious objective to kill without some circumstances explaining why. Consequently the jury’s finding on the lesser offense of criminally negligent homicide was understandable. Carbonneau was stripped of his ability to be a police officer. As a condition of his probation, he was forced to voluntarily surrender his TCLEOSE license for life and spend 60 days in the Harris County jail.

Lessons from the trial

This trial illustrates the difficulties of trying police officers. Eli Escobar was certainly a sympathetic victim, but one could argue that the incident could have been avoided had the teenager submitted to police instructions at the time, whether the instructions were lawful or not. The other difficulty in this trial was a police officer who embarked on a task clearly in service to the public that went horribly wrong. These are obstacles to prosecution that can be overcome only by meticulous preparation and a compelling appeal to follow the applicable law. It is necessary for prosecutors to plan ahead and be prepared to address the issues whether the shooting results in a no-bill or a trial: • respond quickly to the scene and never assume the shooting was justified (that will eventually be revealed during the course of a complete investigation); • formulate consistent policies and procedures for investigation and for submitting cases for grand jury review; • follow up on all witness testimony until the evidence shows it is unreliable. Prosecutors must conduct a fair investigation as well as give the appearance of a fair investigation by going the extra mile; and • make decisions based on the law and evidence, not the character of victims or sympathy for the officers.

Obviously, it is beyond the scope of this article to explore all the issues involved in prosecuting the police. The key is to think through the issues that will arise and have a plan before it happens. None of us expect the day to come when you must prosecute an officer, but perhaps when you are actually faced with the situation, you can be prepared.7 ✤


1 Criminal homicide is murder, manslaughter, or criminally negligent homicide (Tex. Penal Code §19.01). Murder is an intentional killing; most fatal shootings by police are intentional killings. Assuming that the killing is unjustified tends to focus the investigation in the most critical area. 2 “When a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution.” Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977) (discussing Garrity v. New Jersey, 385 U.S. 493 (1967). Officers are usually represented by attorneys at the scene. Most attorneys encourage officers to participate in the walk-through because it is usually to the officer’s advantage to offer an explanation. Some defense attorneys request that the officer give a statement only under the protection of Garrity. I recommend never allowing an officer to give a Garrity statement at the scene because there is no good reason to take an immunized statement from the target of a criminal investigation at this stage of the process. 3 For a discussion of the triple safety features of the Glock firearm designed to prevent accidental discharge when the weapon is hit or dropped; see; see also “Firearm Function Testing,” Function.htm. 4 The standard is not strictly objective. The question is whether, from the officer’s standpoint, would he reasonably believe the detention was justified. (Tex. Penal Code §9.51). 5 Tex. Penal Code §9.51. 6 I credit Don Smyth with setting the policies and standards of the Police Integrity Division since its inception. He investigated or tried the majority of controversial police shootings in Houston until he was promoted to bureau chief during a reorganization several years ago. 7 For more on this topic, see Laeser, Abraham, “When the Ally is the Enemy,” The Practical Prosecutor, National College of District Attorneys, 2005.


Still Locking People Up for Being Poor? Really?! It’s 2014.

February 5th, 2014 No Comments   Posted in ACLU Nationwide  By Mike Brickner, ACLU of Ohio

Debtors’ prisons sound like ancient history, right? Unfortunately, they’re all too common across the United States. In spite of the Constitution, case law, and common sense, low-income people are routinely jailed in places as far-flung as Georgia and Washington State simply because they cannot afford to pay their court fines.

Let’s define court fines, because it’s kind of shocking. “Court fines” could be as little as a couple hundred bucks because someone was pulled over while driving with an expired license. If you’ve just been laid off and have kids to feed, it might be hard to find a couple hundred extra bucks in your budget. Well, that can send you to lock up.

Not only does it cost the community quite a bit to jail someone (usually way in excess of the fine), but locking people up can trap them in the vicious cycle of poverty, debt, and incarceration that typifies the modern day debtors’ prison. Individuals incarcerated because they can’t pay minor court fines have lost their jobs, been evicted from their housing, suffered serious declines in their health, and faced family crises.

Not only are debtors’ prisons wildly bad public policy, they are unconstitutional. And yet thousands of people are still beaten down by the justice system simply because they cannot pay their fines.

Today, as a result of ACLU of Ohio advocacy following the release of Outskirts of Hope, our report exposing debtor’s prisons in Ohio, the practice has been dealt a major blow in our state. The Ohio Supreme Court released a “bench card” to every state and municipal court judge in Ohio explaining how they must avoid sending people to jail who are too poor to pay their court fines. This bench card is the first of its kind in the nation. It marks an unprecedented move by the Ohio Supreme Court to educate and hold accountable judges who ignore the law. The card provides judges with the legal alternatives to collect payments, and the procedure they must follow to determine a person’s ability to pay their court fines.

Ending the debtors’ prison cycle can turn lives around. Take the story of Jack Dawley, who had convictions from the early 1990’s due to his addiction to drugs and alcohol. In the mid-1990’s Jack became sober and tried to get his life back on track. Despite being sober for 14 years and paying what he could on his fines, Jack could not escape debtors’ prison. For years, Jack faced the threat of jail every time he fell behind on his payments, or had to miss work at his construction site due to a chronic back injury. Even after Jack had lost his job and his home, his judge still threatened to send him to jail if he did not pay his fines.

Jack had reached his lowest point when he decided to contact the ACLU of Ohio.

As a result of our report and intervention, Jack’s life has taken a dramatic turn. Since we released Outskirts of Hope, some Ohio courts even started changing their practices prior to release of the Ohio Supreme Court’s bench card. The Supreme Court made it pretty clear that the Judge in Jack’s case needed to follow the law and not send Jack to jail because of an inability to pay court fines. I spoke to Jack by phone last night to tell him about the release of the bench card and he was a different man. Jack informed me that he has a job at a fruit packing plant and was recently promoted to a floor supervisor. He saved money and was able to get an apartment, reinstate his drivers’ license, and get his car working again. In 10 months, he has gone from no hope and no opportunity to professing, “the sky is the limit.”

By taking action today, the Ohio Supreme Court has struck a deep blow against unconstitutional debtors’ prisons and restores hope to those trapped by poverty and injustice. It’s time the rest of the country did the same.

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Things that Are ALWAYS Illegal: Sexual Assault Behind Bars

February 5th, 2014 No Comments   Posted in ACLU Nationwide  By Chase Strangio, Staff Attorney, ACLU

Imagine you are taken from your community and family and sent to an institutional environment where everything is separated by sex. Once you get there the officers in charge of your every moment tell you that you are not the sex you have always known yourself to be but instead are the opposite sex and will be considered that sex for all purposes. Then, you are stripped of all your clothes so that officers can observe your genitals. This is a common form of sexual assault that transgender and gender non-conforming individuals in prison and jail are regularly subjected to. Why? So guards can decide which jail or prison cell to assign them to.

For others, sexual assault means being locked in “protective” custody – better known as solitary confinement. Somewhere along the way, corrections officials determined that isolating LGBTI prisoners would keep them safer. Here’s the truth: people in solitary confinement are especially vulnerable to sexual abuse from prison staff. And spending 23 hours a day alone in a cell the size of a parking space does its own considerable damage, whittling away at someone’s mental health or making pre-existing conditions even worse.

None of this is okay. A prison sentence should never include sexual assault of any kind. And yet, for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) individuals in custody, reports of assault, harassment, and prolonged isolation are staggering.

This is illegal. And we can stop it.

You’ve probably heard about the Prison Rape Elimination Act (or PREA). That’s right, the goal is to fully eliminate sexual assault behind bars. We have a long way to go.

State prisons and local jails are required to fully comply with PREA, but many are lagging. Some are behind because of confusion about the law, and some are behind because changing the way they’ve always operated is not something they are prepared to do. The best way we can urge these facilities to meet their legal obligations to protect LGBTI prisoners from abuse is by getting information inside prison walls so that our incarcerated LGBTI community members know their rights and have the tools to fight for them. And those of us on the outside need to let these facilities know we’re watching and put public pressure on them to comply with the law. The time to act is now.

Today, we launched a powerful new tool that can help. End the Abuse: Protecting LGBTI Prisoners from Abuse is a four-part toolkit that helps advocates devise a strategy to pressure jails and prisons to meet their obligations under PREA. It also identifies common violations of the PREA regulations and what you can do to remedy them. And for people currently behind bars, the toolkit includes a Know Your Rights Guide.

Help us fight the endemic violence in our prisons and jails. The PREA regulations have set important limits but we must act to hold these systems accountable. Share this toolkit.

A prison sentence should never include sexual assault. Click here for the ACLU’s four-part toolkit on how to use the Prison Rape Elimination Act to protect LGBTI prisoners from abuse.

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Why Some States Still Fight the Exoneration of the Innocent

            Record numbers of wrongful convictions were overturned across the nation last year. But in some places, the trend seems to moving in the opposite direction.

Alessandro Bianchi/Reuters 

The National Registry of Exonerations announced Tuesday that 2013 was a “record year” for exonerations in the United States. The group’s investigators and researchers found that at least 87 men and women had the charges against them cleared, their convictions overturned, in 25 states around the country.  Black or white, male or female, Northern or Southern, many of these people were freed from prison in 2013 after serving decades in prison for crimes we now know beyond a reasonable doubt that they did not commit.

Each of these exonerations represents a tiny point of light in the darkness of the nation’s criminal justice systems, which remain racially biased and, in countless other ways, arbitrary and capricious. The miracle here isn’t just that 87 people last year were able to enjoy a new level of truth and justice. The miracle is that despite our grand pronouncements about equal justice under a rule of law there are so many more innocent people behind bars today who are yet to be exonerated.

There are a number of interesting revelations in the new report. For example, DNA exonerations declined last year and represent only about a fifth of the total. Fifteen of the 87 exonerations occurred after false guilty pleas, another sign of how prevalent coerced confessions can be. There were 40 murder exonerations in 2013 and 18 involving convictions for rape or other sexual assault. Perhaps the biggest surprise, however, is how optimistic the authors seem to be about growing cooperation from prosecutors and judges. From the report:

The pattern of exonerations in 2013 suggests that we are increasingly willing to consider and act on the types of innocence claims that are often ignored: those without biological evidence or with no actual perpetrator; cases with comparatively light sentences; judgments based on guilty pleas by defendants who accepted plea bargains to avoid the risk of extreme punishment after trial. The recent increase in the number of exonerations initiated by law enforcement directly shows that police and prosecutors have become more attentive and concerned about the danger of false conviction.

Maybe yes and may be no. I write about plenty of cases where actual innocence is an issue but where the intransigence of the courts, or of prosecutors, is remarkable. For example, I’m now into my third year covering the case of Tyrone Noling in Ohio. He deserves to have critical DNA evidence tested to determine whether another man committed the murder for which he now sits on death row. Had Ohio officials agreed to this two years ago, we’d all know the truth by now. The case would be closed. Instead, at great cost to taxpayers, those officials have balked. This year I’ll be covering another hearing, at least.

You can say the same thing about Alabama, which won’t permit DNA testing in the death penalty case of Thomas Arthur even though his attorneys say they will pay for it and even though another man confessed under oath to the murder for which Arthur was convicted and sentenced to death. You can say that same thing about Mississippi, which won’t permit DNA testing in the death penalty case of Willie Manning even though the FBI—the FBI!—has offered to do the testing amid questions about the reliability of the scientific evidence introduced at his long ago trial.

And you sure can say the same thing about Texas. In some ways, state officials have done a laudable job recently of trying to rectify past injustices. Texas leads the 2013 list with 13 exonerations. On the other hand, the Texas Court of Criminal Appeals, on Wednesday, inexplicably refused to permit DNA testing in the case of a death row inmate named Larry Swearingen. The rationale the court applied was almost cruel: There could be no testing because Swearingen had not proven there was “biological evidence” to test. Of course, such testing would have put that question to rest, one way or the other.

There are thus two relevant facts worth noting that are not synthesized into the exoneration report’s analysis. The first is that not all states are equal when it comes to prioritizing exonerations. Some simply care less about justice for the wrongfully convicted than others. Some are spending money on programs designed to ferret out inaccurate trial results while others are not. The registry that has given us this report may be national, in other words, but the remedies in place surely are not. Congress could help rectify that. So could the Supreme Court. So could the executive branch. Maybe this year.


After decades in prison over murders, DNA evidence frees 2 New York men

By Ben Brumfield, CNN
updated 2:49 PM EST, Sat February 8, 2014

The second point that needs to be made in the shadow of the report is that some states today are moving against the flow. Lawmakers in at least two states, Alabama and Tennessee, are seriously considering measures that would tighten appellate deadlines in capital cases, making exonerations harder to achieve. In Alabama, five men were given new trials in circumstances that might be precluded under the new proposal. In Tennessee, the bill now being considered, in addition to moving up those deadlines, would require public defenders to pay fines if they later are found to have provided “ineffective assistance” at trial.

What these two legislature proposals tell me, and what the Noling and Swearingen cases confirm, is that there is still a great deal of tension within our justice systems about the relative value of accuracy. For state lawmakers fed up with delays in capital cases, it’s more important to bring finality than it is to ensure accuracy. For those prosecutors and judges in the Noling and Swearingen cases, there’s no need to look more closely behind the curtain, no matter how substantial the questions may be about whether these men committed these crimes.

We all can be encouraged by the pace at which these exonerations are amassing. We all can hope that the support from judges and prosecutors is a trend we can bank on. The number 87 is better than the number 78. But when I read this report, all I can think about is how hard it is to undo these faulty verdicts, how much effort it takes by so many on behalf of the wrongfully convicted, and how stubborn so many others are to see what’s right in front of their noses. Our justice systems are quite often unjust and it ennobles us, not diminishes us, when we acknowledge this and move quickly to fix it where we can.

EmPac Texas

Retribution and Harassment  – What Citizens Pay for Disclosure

by on 05/07/12 at 1:40 pm

Retribution and Harassment – What Citizens Pay for Disclosure

One of the costs of writing a blog such as this are the inevitable conflicts with the very authorities who have already refused to act to clean up their own house.  When we first started down this road we were advised that we would have to watch our every step.   Routinely, we were told, criminal charges are often the method chosen in an attempt to discredit the efforts of your staff.

Of late, police vehicles sit outside our offices for a good bit of the day.  Certainly tax payers have a higher expectation for what police officers should be doing with their time.  We nod politely when we come and go but have come to understand that politeness is apparently not taught at the academy.   To whatever end this new attention to our comings and goings is intended, most citizens would conclude it as intimidation to silence a voice of opposition.

Our contract with each other is founded on my being willing to fight and die for your right to stand on the street and shout at the top of your lungs that which I most adamantly oppose.   That is the single principle that separates us from every other country on the face of the earth.  If the authorities we have entrusted to protect that basic contract have chosen instead the tools of retribution and harassment to silence the voices of opposition, then the blood spilled in war at the alter of liberty by so many brave men and women, has been given in vein.

Our country was founded on the voices of opposition.  We dared to oppose the greatest power on earth and through the immortal eloquence penned in the words of the Declaration of Independence, we said we were no longer willing to give up those basic rights we considered belonged to all men.  To now use the tools of the State to silence the voices of opposition squanders the lives of all those that have died to insure that such a State would never again hold power over the citizens of the United States of America.

Castle Doctrine/Stand Your Ground Law



Greater Houston Coalition for Justice    Trayvon Martin Decision 

Has the death of 17-year-old Trayvon Martin reveal a race base hidden legislative agenda that disproportionately impact communities of color?”

March 25, 2011 GHCFJ News Release

The Greater Houston Coalition for Justice has issued the  media release in support of the Congressional Black Caucus national outcry for an arrest in the Trayvon Martin case that included a Sunday rally in Houston.

According to Media Matters, Florida law, that may protect the man who shot and killed 17-year-old Trayvon Martin in February is the template for an American Legislative Exchange Council (ALEC) “model bill” that has been pushed in other states. The bill was brought to ALEC by the National Rifle Association (NRA), and fits into a pattern of ALEC bills that disproportionately impact communities of color.

“The ‘Stand Your Ground’ law is a license to kill,” former U.S. attorney Kendall Coffey told NBC News, noting that the number of “justifiable homicides” in Florida has tripled since the law was passed in 2005.

The Castle Doctrine and its “stand your ground” provisions give license for people to engage in vigilantism without liability. As such, the ALEC bill can put the decision to take a life in the hands of a person whose fears are motivated by prejudice and racial bias.

The law establishes a presumption that a person acted in self-defense if a killer claims they had a reasonable fear of bodily harm, but in situations like the killing of Trayvon Martin, where there were few eyewitnesses other than the alleged killer and the person who is killed, the presumption of immunity can be very difficult to rebut. In those circumstances, unfounded fear based on racial prejudice that leads to murder could end up being protected under the law.

The Greater Houston Coalition for Justice is an umbrella group of approximately 25 civil rights and advocacy groups whose mission is to pursue greater human rights awareness and to address both perceived and real deficits in the greater Houston regional criminal justice system.


Man Kills Suspected Intruders While Protecting Neighbor’s Property

Vigilante or Guardian?

A Texas man kills two men he believes are robbing a neighbor’s home.

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Monday, June 30, 2008


HOUSTON — Joe Horn, 62, shot the two men in November after he saw them crawling out the windows of a neighbor’s house in the Houston suburb of Pasadena, carrying bags of the neighbor’s possessions.

Joe Horn called 911 and told the dispatcher he had a shotgun and was  going to kill the men. The dispatcher pleaded with him not to go  outside, but Horn confronted the men with a 12-gauge shotgun and  shot both in the back.

Joe Horn: Hurry up man.  Catch these guys, will ya? ‘Cause I ain’t gonna.  I’m gonna be honest with ya.  I’m not gonna let ‘em go. I’m not gonna let them get away with this.

Read more—

Wonder why— Joe Horn is not on this report ?Read more—

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Report: Justifiable homicides in Texas on rise

Published 03:17 p.m., Monday, July 2, 2012

HOUSTON (AP) — Justifiable homicides in Texas have steadily increased since the state expanded its version of a stand-your-ground law in 2007, according to a newspaper analysis.

The Houston Chronicle on Monday reported ( ) that the number of justifiable killings in Texas under the law known as the Castle Doctrine have increased from 32 in 2006 to 48 in 2010, according to a review of FBI data.

About half of the killings in 2010 — 27 — occurred in the greater Houston area. Dallas and San Antonio also showed increases, with nine and eight respectively.

The law was revised to expand the right to use deadly force. The new version allows people to defend themselves in their homes, workplaces or vehicles. It also says a person using force cannot provoke the attacker or be involved in criminal activity at the time.

Legal experts say the expansion in general gave people wider latitude on the use of deadly force.

Texas law always allowed deadly force against intruders and thieves to protect lives and property. But where it once required that a person try to retreat if possible when facing approaching danger, it no longer does.

“Traditionally, if you felt your life was threatened, you could use deadly force to protect yourself, except if you could get away safely where nobody got hurt, then you were required to do that,” said Sandra Thompson, a professor at the University of Houston Law Center.

The debate on such laws reached a fever pitch after the fatal February shooting of Trayvon Martin, an unarmed teenager shot by neighborhood watch volunteer George Zimmerman in Florida. Zimmerman is using Florida’s stand-your-ground law to justify his shooting of Martin.

In Texas, retired Houston-area firefighter Raul Rodriguez claimed he was standing his ground and had no choice but to use deadly force when fatally shooting his neighbor Kelly Danaher in 2010 after confronting the unarmed Danaher about a noisy party. Last week, a jury that had disagreed with Rodriguez’s stand-your-ground argument and convicted him of murder a couple weeks before, sentenced him to 40 years in prison.

Texas law doesn’t just permit deadly force to protect property. It also allows such force to stop rape, arson, burglary, robbery, theft at night and criminal mischief at night.

A grand jury last month in Lavaca County declined to indict a 5-year-old girl’s father who found a man molesting her behind a barn in Shiner and beat him to death. The father, the grand jury determined, was within his right to use deadly force to protect his daughter.

Shootings under Texas’ expanded law most often happen after dark and involve a male shooting a handgun during a home invasion, according to the newspaper’s review.

In one shooting, longshoreman Rodrick Batiste, shot and killed a man who broke into his Houston townhouse in the middle of the night and tried to steal his flat-screen television.

“Although I have all kinds of remorse, that doesn’t change the world,” Batiste said. “This type (of) thing is still out there, and you should be able to defend yourself and your property without the risk of turning into a victim, if not by the person trying to victimize you, then by the law.”

He said he has considered reaching out to the dead man’s family.

“I’d just tell them I am sorry for their loss, I didn’t mean for it to go that way,” he said.

Report: Justifiable homicides in Texas on rise

Information from: Houston Chronicle,

Read more—

By Kyle Scott, Houston Chronicle                     

Updated 06:50 p.m., Monday, July 2, 2012

As recently seen in Houston, the stand-your-ground law is not a license to kill. When given the opportunity, a jury is able to distinguish between the law’s intent and a person distorting the law to defend murder.

The Harris County jury found Raul Rodriguez guilty of killing his neighbor and sentenced him to 40 years in prison on June 27. In a dispute over loud music Rodriguez, armed with a gun, confronted his neighbor. When the confrontation escalated, Rodriguez shot and killed one person and injured two others, claiming that he felt threatened. Rodriguez claimed he was acting in self-defense under Texas’ stand-your-ground law.

The jury rejected this defense, saying that Rodriguez provoked the incident.

The parallels between this case and the case involving George Zimmerman‘s shooting of Trayvon Martin in Florida are clear, even though the Texas decision is in no way binding on a Florida jury. If it can be shown that Zimmerman provoked the attack, then he cannot claim self-defense under Florida law. It will be more difficult for the prosecution to prove provocation in Florida than it was in Texas, since in Texas there were several eyewitnesses, video and a 911 call. But this doesn’t mean that a jury can’t correctly assess whether Zimmerman acted according to the intent of the Florida law.



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