Equal Protection for All – Is Not Always Equal.

No one can deny the courage of those who roam our streets sworn to protect us. Our men and women in blue put their lives on the line daily to protect our lives without a second thought of their own. However, like most institutions, the police foundation has a number of cracks in it. And none can be as volatile as this stark reality: it seems almost as easy for an officer to kill somebody, as it is for somebody to be charged with assaulting an officer. How can the police exert such force and seemingly get away with killing an innocent person while at the same time being so fragile that even the smallest of actions could lead to a charge as serious as assault of an officer? The simple answer is that it’s as complex as it is convoluted- and reality isn’t far from that.

In Washington D.C, the aspects of Assault on a Member of the Police Force is an extremely easy charge to prove for the government. Enshrined in the Code of the District of Columbia, Assault of an Officer can be either a misdemeanor or a felony. The deciding factor to determine the severity of the charge is the amount of force used or the gravity of the risk of injury to the officer in the incident. In both cases, the punishment for assaulting an officer carries heavier punishment as compared to other assault charges.

The criminal code defines Misdemeanor Assault of a Member of the Police Force as, “without justifiable and excusable cause assaults a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her duties.” The maximum sentence in the District is six months in jail, or a fine of $1,000, or both.

Felony Assault of a Member of the Police Force adds the addition of significant bodily injury to the officer, or an act that would “create a grave risk” of significant bodily injury. Even creating a situation in which an officer has the potential to be hurt can constitute a felony charge of assault on an officer. The maximum sentence for the felony charge is ten years in prison, a $25,000 fine, or both.

However, the penal code adds a caveat to what defines a just and excusable cause that would legitimize the use of force against an officer. The code states, “it is neither justifiable nor excusable cause for a person to use force to resist an arrest when such an arrest is made by an individual he or she believes to be a law enforcement officer, whether or not such an arrest is lawful.” Meaning, you have no right to use force against an officer to avoid being unlawfully detained regardless of the situation or the legality of the arrest. It is this section of the law that allows the government, regardless of the situation, to justify charging anyone for assault of an officer. The law creates an environment in which any situation, regardless of the circumstances, to constitute almost any action against police officers as an assault.

During the Presidential Inauguration this past January, police arrested over 200 protestors for unlawful activity. During the protests, six officers sustained minor injuries. Of the 217 arrested, one hundred protestors were charged with misdemeanor assault of an officer. One protestor, Dane Powell, was charged with felony assault of an officer for throwing stones in the direction of officers but not actually hitting any. Police responded to protestors with force including the use of pepper spray, smoke grenades, and flash bang. Ironically, the law allows the police to use as much force as they deem necessary to fulfill their duties. So while one man is facing years in prison for throwing stones in the direction of police, officers are empowered to use whatever force they need and arrest as many as they can. However, this irony runs even deeper.

While the risk of injury can be easily prosecuted and lead to extensive jail time for civilians, officers rarely face any repercussions for any instance of extensive force they use on civilians. If you’ve watched TV in the last six years, then this shouldn’t come as a surprise.

In 2011, Kelly Thomas, a mentally handicapped homeless man, was beaten by police officers for acting suspiciously. He died in the hospital five days after the incident. A jury acquitted two of the officers involved, and the government dropped the charges against another.

In 2014, Eric Garner was taken to the ground by police using a choke hold, a maneuver that is banned by the New York Police Department. Mr. Garner, who had asthma, plead with officers as they held him down that he couldn’t breath, and eventually died of suffocation. A grand jury didn’t indict any officers involved.

Also in 2014, Michael Brown, an unarmed teenager, was shot and killed by an officer. Police documents claim the police officer fired his weapon 12 times. A grand jury refused to indict.

In 2015, Walter Scott was pulled over for a traffic violation. An incident ensued, and the officer shot Mr. Scott, claiming Scott reached for his taser and the officer feared for his life. Cell phone footage was later released showing Mr. Scott running away from the officer, who shot him in the back. The officer later admitted to lying, and accepted a plea bargain in which he plead guilty to excessive force in exchange for the government dropping their murder charges.

In 2016, in a shocking incident, a police officer shot and killed Philando Castile after he was pulled over for a traffic violation. Mr. Castile’s girlfriend live steamed the incident on Facebook. The officer who killed Mr. Castile was found not guilty of second degree manslaughter.

Also in 2016, Officer Betty Jo Shelby shot and killed Terence Crutcher. Mr. Crutcher was unarmed. She claimed she feared for her life and stated, “I saw a threat and I used the force I felt necessary to stop a threat.”In early 2017, she was acquitted for felony manslaughter.

In all of the above instances it appears police used unnecessary and excessive force in situations in which it was not necessary. In all cases but one, the officers received no punishment for their use of excessive force and the killing innocent people. It’s chilling to realize that the intent to hurt an officer is almost guaranteed to result in an extensive jail sentence, but when an officer kills somebody they almost never suffer the consequences. Maybe it’s an issue with the law, maybe it’s an issue with police training, and maybe it’s an issue with race. It’s probably a combination of the three, plus countless others, compiled to create a situation in which the law does not apply equally to all.

About Micheal Bruckheim

As a former Prosecutor, Michael Bruckheim has experience on the other side of the aisle. Prior to founding his law office in 2010, Mr. Bruckheim enjoyed a diverse career in litigation at the Office of the Attorney General for the District of Columbia (OAG) serving for over 11 years. He began his OAG career as a prosecutor in the Criminal Section where he conducted numerous bench and jury trials in traffic and criminal misdemeanor matters. Mr. Bruckheim was promoted and served as Chief of the Criminal Section at the OAG where he supervised the prosecution of DUI offenses in the District and directed a staff of over 20 attorneys.