Police using deadly force are rarely convicted

The APD bullet is still in Tramaine Miller’s neck, a legacy of what at best was a bad decision by a hard-pressed police officer or at worst the reflexive act of a trigger-happy cop.

Former Atlanta Police Officer Reginald Fisher testified at his 2011 trial that he mistook the cellphone in Miller’s hand for a gun. Miller, a fast-food worker, was leaving a Mechanicsville apartment after helping his quadriplegic aunt. He refused to unlock his car door when confronted by Fisher, who was working an off-duty security job and had deemed Miller suspicious.

Fisher smashed out Miller’s car window with his baton, saw something in Miller’s hand and shot him.

A Fulton County jury acquitted Fisher, then 42, who argued that he was working in a high-crime neighborhood and feared for his life.

“We felt the policeman went over the line and felt very strongly that he should be charged,” District Attorney Paul Howard told The Atlanta Journal Constitution last week. “I think the jurors thought he made a legitimate mistake and gave him the benefit of the doubt.”

Police departments follow U.S. Supreme Court decisions in deadly force policies; the laws boils down to whether a reasonable officer would believe his life or another citizen's life was in danger in the moment before he shoots, said Dale Mann, former director of the Georgia Public Safety Training Center.

The Supreme Court and Georgia law give police wider discretion than the average citizen has, Mann said. A brawler in a bar fight who shoots a guy preparing to hit him with a bottle will likely get indicted. A police officer breaking up that fight who shoots the guy with the bottle likely will not.

The officer can shoot multiple times. While a prosecutor will use multiple shots against a murder defendant who claims self-defense, in policing they’re standard procedure.

“The officer is trained to stop the threat — it is as simple as that,” said Gary Robinette, a retired FBI agent who testifies as an expert for plaintiffs in police brutality or shooting cases. “That means shooting as many times as you have to until the guy is down. The old thing where they were taught to shoot to kill became politically incorrect, but it is the same thing.”

The elements become dicier for the officer if the suspect/victim is clearly unarmed — as in the Ferguson, Mo., case in which Officer Darren Wilson shot 18-year Michael Brown, experts said. Shooting at a fleeing Brown, as a witness said Wilson did, was illegal under the law unless Wilson had a reasonable belief that Brown constituted a threat to law officers or the public.

Police are trained on a use of force policy in which an officer is taught to use a baton or Taser on an unarmed aggressor and can escalate to deadly force if the aggressor is armed with a weapon that could do grave injury — or if the officer believes he is about to lose his weapon, experts said.

“The police are going to say the fight with the officer is a felony so the logic is Michael Brown committed a violent felony so you take him down — I just don’t agree with that analysis,” said Decatur attorney Mawuli Davis, who brings civil lawsuits in police shootings. “If you are a properly trained officer, when this guy is running away you call for back-up and you pull your Taser. If he comes back at you, you put him down with the Taser.”

Marietta attorney Bill McKenney is a former police commissioner and prosecutor in New York. He said the shot at the fleeing Brown — which the police say missed — and the shots that killed him when he was about 35 feet from the officer represent a high hurdle for Wilson in trying to show the shooting was justified.

“The fight is over, the assault on the officer is completed and the individual is running away and has no weapon,” said McKenney, who has represented officers in shooting cases. “The only defense that I think could be imposed is that the individual was coming back at the officer and … might be coming back to take the officer’s gun.”

A successful prosecution would be an anomaly. Former DeKalb District Attorney J. Tom Morgan said the only officers he knows of going to jail in metro Atlanta in a shooting case were rogue Atlanta officers involved in the killing of 92-year-old Kathryn Johnston in a botched 2006 drug raid.

Morgan, who as a defense lawyer represented Fisher, contended the bar should be high to indict police whose job requires endangering themselves.

“Officers have to decide whether to shoot in a matter of seconds,” Morgan said. “Tragedies and mistakes are made but that doesn’t make them a crime.”

The Atlanta Journal-Constitution was unable to reach Fisher for a comment on this article.

Howard ,more than most district attorneys, has sought indictments against cops he believes unjustly killed others. But grand juries generally have not indicted and if they did, as in Fisher’s case, a jury or a judge has acquitted the defendant.

Howard said in police shootings often the only witnesses are police, often the shooters are investigated by sympathetic officers and often the dead or wounded have blemished records.

In a case involving a College Park officer who shot a man during a DUI arrest, Howard retained an expert whose analysis of bullet trajectories proved the officer’s self-defense account was untrue.

But the victim had a history of confronting police, and the grand jury didn’t indict. In the case of teenager shot in Buckhead by an officer in questionable circumstances, a judge ruled the case against the officer unproven.

In Fisher’s case, Miller had a drug conviction — which might have persuaded jurors to follow an expert witness’s testimony that Fisher would be justified if he mistook the phone for a gun, Howard said.

It was a case that Davis, who represents Miller in a civil suit, had felt relatively confident would end in conviction: the only law Miller had broken that day was parking in a handicapped space.

“Obviously everybody was very disappointed that you can shoot an unarmed man and get away with it,” Davis said. “Tramaine Miller is now disabled — that one encounter disabled him. He lives a life of constant pain. You can still see the bullet protruding under the skin in the back of his neck.”