The FBI Will Record Charles Eimers’ Killing as “Justifiable” Because….

Published in:  Key West's Blue Paper (Issue #102) 2-19-2015

The FBI Will Record Charles Eimers’ Killing as “Justifiable” Because….

 

Martha K. Huggins, Ph.D.         

       In just in the first six weeks of 2015 US law enforcement has killed on average one civilian every eight hours, resulting in at least three deaths every day.  These figures do not come from a US government data base because there is none, nor has there ever been one on these deaths.  Vigilant citizen groups (killedbypolice.net) obtain statistics on law enforcement killings by tabulating national news and newspaper reports.  Ironically, this is exactly how non-governmental organizations in countries carrying the scars of authoritarian rule get information on killings by their government’s security forces.  Is it a mere oversight that the US, the world’s second most populous formal democracy,  has never had an official accounting of  total  civilian killings by law enforcement? 

Michael Brown’s 2014 slaying by Ferguson policeman Darren Wilson and the subsequent unrelenting protests prodded mainstream media to finally dig critically into the unsavory details about law enforcement killings.  The media seemed astounded to learn by piecing together diverse facts and figures what America’s poor and especially Blacks have known for a very long time, that law enforcement killings are much more frequent than assumed, with Blacks the disproportionate victims of lethal force, that regularly goes uninvestigated and unpunished.   Most surprisingly to many at the time, the US Department of Justice and its FBI have no record of the total number of civilians killed annually by US law enforcement. 

To clarify, for more than a half-century the FBI has published data annually in its Uniform Crime Report (UCR) on what it defines as  “justifiable” civilian killings  by a “peace officer”;  no “unjustifiable” law enforcement killings are documented there.  The reported “justifiable” killings have ranged from an annual high of 457 and 459 homicides of civilians in 1980 and 1995, respectively, to a low of 298 and 296 in 1986 and 1987, respectively.  The annual average of “justifiable” civilian killings by law enforcement over the past 37 years, according to the FBI’s own statistics, has been relatively stable—two-thirds of law enforcements’ civilian killings in that period have been in the mid-to-high 300s.  This implausibly low and relatively steady number of “justifiable” killings has always piqued my curiosity.  Could this relatively constant statistic occur by chance alone?  Probably  not.  It is likely to result from the small number of law enforcement organizations that voluntarily submit their quarterly data to the FBI on their law-enforcement homicides of civilians.  Fewer than five percent of the nation’s 17,000 law enforcement agencies send this data to the Bureau!  

That the FBI’s annual Uniform Crime Report does not document  “unjustifiable” civilian killings by law enforcement—aside from this making it impossible to analyze the ‘who,’ ‘what,’ and ‘why’ of  these shootings—points to the quite possibly propagandistic role of  seeking data only on and  then publicizing only law enforcements’ “justifiable” civilian killings.  As Alex Symington (“Satire and Propaganda,” Blue Paper #99) has pointed out, propaganda “twists… information into various shapes to bolster” arguments.   In FBI-speak, the “justifiable” killing of a civilian involves, “the killing of a felon by a peace officer in the line of duty…., [which is subsequently] determined through [a] law enforcement investigation to be justifiable.”

The cop who kills “justifiably” is a “peace officer,” who by this upbeat label is rhetorically excluded from killing unjustifiably.  But just in case a “peace officer” has his murderous action questioned, not to worry:   the Bureau’s definition of a “justifiable” civilian killing covers that as well.  A cop who kills a civilian is employing lethal force against an automatically labeled  “felon.”  The FBI’s definition takes for granted that  law enforcement would only shoot someone obviously guilty of a serious crime.  This explicit assumption is demonstrated by the Bureau’s omitting “alleged” before the word “felon,”  which wipes away the US constitutional provision of innocence until proven guilty in a court of law. The “peace officer,” in other words, killed a ‘perpetrator’ who had just been caught committing a felony, or  had  threated violence against the officer, or  had a previous felony conviction.  Automatically granting so much in-situ ‘judicial’ right to law enforcers’ opens the door for killer cops to concoct evidence as they go along, as Keywesters remember happened after Charles Eimers’ killing.

 

The FBI seals the deal for cops who kill by allowing the shooter’s own blue brotherhood to establish a homicide’s legitimacy.  This allows the FBI to  then record  the killing as “justifiable.”  When law enforcement killings of civilians are formalized and validated through a law enforcement agency’s ‘kangaroo court,’ civilian slayings become costless for law enforcement and government--unless civil suits are brought by the families of those slain.  Yet even then, as Keywesters have seen, the law enforcement system itself is ordinarily unscathed,  with no admission of guilt or culpability by other than perhaps one uniquely bad cop.

 

We should not be fooled by FBI Director James B. Comey’s recent speech that alternately bolstered US law enforcement and softly criticized its  “troubled legacy” of handling “disfavored groups.”  The FBI continues giving its blessing to unjust lethal force against civilians through its enabling definition of a “justifiable” killing and  by not maintaining and publishing any record of all police lethal encounters.  Out-going US Attorney General Eric Holder has taken steps to change some of this but will his successor follow suit?  Maybe not.

After all, the FBI requires the assistance of sheriff and police organizations to obtain what the Bureau  really needs—boots-on-the-ground  local surveillance information.  This was aptly demonstrated in 1938-1941, when President Franklin Delano Roosevelt under pressure from the Dies Committee of the House Committee on Un-American Activities, authorized the FBI to expand its domestic surveillance on ‘subversives.’  The Bureau had quickly learned that it could not accomplish its mission without the cooperation of local police and their intelligence squads.  This was also required from the late 1950s to the early 1970s, when the FBI carried out its COINTELPRO counterintelligence program  to "misdirect, discredit, disrupt and otherwise neutralize " specific  individuals and  presumed left-leaning groups.  And the FBI continues to need cooperation from state and local police organizations in today’s ‘War Against Terror.’  Especially since police and sheriff organizations would rather not have the FBI poking around in their business, the Bureau cannot afford to alienate them if it is to achieve its surveillance mission primarily against  those FBI Director Comey labels “disfavored groups.” 

This may suggest why the FBI rigs its reporting system to render law enforcement killings of civilians “justifiable,” with no such process for adjudging and reporting “unjustifiable” police killings.   Sweet deal for all of them and no deal for the rest of us, including those who are unjustly killed by police and have their death bureaucratized by the  FBI as “justifiable.”  This is very likely to be the fate of Charles Eimers’ slaying by Key West police--if  the KWPD organization even reports Eimers’ laundered killing to the FBI. 

 

UNDERWRITING POLICE BRUTALITY: KEY WEST

Underwriting Key West’s Police Brutality 

Published in Key West The Blue Paper  (http://thebluepaper.com/underwriting-key-wests-police-brutality/)               

 (Or: http://thebluepaper.com/category/issue-100/)

Martha K. Huggins, Ph.D.*

Tulane University Emerita

The Key West Citizen wrote on January 30—after The Blue Paper had broken this news many hours before—that a $900,000 settlement had been “hammered out” in the Charles Eimers’ wrongful death suit against the City of Key West.  Key West’s Police Chief Donie Lee finds the payout a “difficult decision to accept” but understands that the city’s insurer made a “business decision.”  Spokeswoman Allison Crean claims that, “No taxpayer dollars are involved in the settlement.”  She adds that, “Mounting legal costs were the reason the city’s insurance carrier ‘made a business decision to settle’.”  Chief Lee and his police will not have to assume responsibility for the deadly outcome of Eimers’ police Taser take-down and death-by-smothering. Who’s left to clean up this civil rights case?  The taxpayers! 

Taxpayer monies absolutely are part of  Eimeirs’ wrongful death settlement. Between 2011 and 2013 Key West City government used our taxes to pay Preferred Government Insurance Trust $142,118 for law enforcement-related liability insurance policies.  This insurance does not cover rank-and-file police; it protects only Key West government and its officials--and very likely Chief Donnie Lee as well—against police brutality’s possibly expensive economic blow-back.  The combined annual cost of the city’s four police liability policies increased just a little over $2K between 2011 and 2012,  but  the total cost shot up $15K between 2012 and 2013, in other words, by more than 11% in one year.  One can expect a similar or even larger escalation for 2015 and thereafter due to the Eimers’ settlement and any other police abuse suits the city loses or mediates away. 

 

But not all  Key West taxpayers bear an equal economic burden.  As in other US cities, it is Key West’s poorer and struggling middle class families who pay disproportionately the taxes--excise, food, rental, property—that protect Key West government against known police lawlessness.  The Conch Republic’s richer residents have a lower proportion of  their family incomes burdened by such taxes.  Historically, nationally and in Key West wealthier Americans are proportionally much less likely to be victims of  police brutality while poorer and middle-class people are far more likely to be such victims.                                                                         

An additional cost of police misconduct results from the fact that  most liability insurers stipulate (and state law usually requires) that an insured state, county, or municipal government  must also set aside each year a mandated amount--often between one-third  and two-thirds of the previous two- or three-year’s real or expected police brutality payouts--to cover the next year’s potential losses.  This self-insured retention (SIR), as insurers call it, goes into the insured government’s ‘reserve’ fund to pay possible  court judgments, settlements, and legal fees related to police violations of  civil rights, up to the amount at which a government’s  insurance policy kicks in above the SIR (‘deductable’).  All of Key West’s law enforcement liability policies have such a SIR, hence the city must use its taxpayer-fed reserve to pay part of the Eimers’ lawsuit indemnification.

While writing a book, Underwriting Police Brutality, I’ve plodded through US city, county, and state laws, struggled with opaque and misleading municipal and state budgets, and pestered large  corporate insurers to release some well-guarded facts.  Through a public records request last April that I learned of Key West government’s four law enforcement-related insurance policies: General Liability and Law Enforcement Liability, and Public Officials’ Errors and Omissions (E&O), and Directors’ and Officers’ (D&O) insurance.  Key West thus insures against its executives  against its cops’ expected lawlessness. 

The cops themselves have to purchase their own costly liability insurance—although most do not.  When a suit is brought against police they either hire their own attorney or they get one from their powerful Police Benevolent Association (PBA)—as  Key West’s Officer Lovette is reported to have done.  Some US law enforcement officers have let themselves be represented by one of their state or local government’s own attorneys, only to realize too late that this is a serious conflict of interests.  A government’s interests are usually at odds with those of its defendant cop,  whose illegalities--if  well-documented-- could bring down  political and police superiors.  Someone’s got to take the fall and in the Eimer’s case, Officer Lovell is doing that.  This ‘one bad cop’s’ ultimately well documented actions could well  divert public attention from the real foundations of police lawlessness—powerful exclusionist real estate and tourism pressure groups and the politicians, government officials who work for them,  and the voters who support this faction—leaving  police with the onerous task of  controlling  at any expense those excluded from civil society.

‘Avoid a trial at any cost,’ is the mantra of police brutality insurers and their government clients. Therefore, they assign to law enforcement the initial work of covering up evidence.  Clearly Charles Eimers’ death by Key West police was quickly (and literally) “slabbed”—laid to rest—when his body was taken to a mortuary rather than for forensic evidence collection .  Thereafter, evidence that came to light was ignored or hidden in bureaucratic finagling, crucial facts were denied, and other alleged facts were cooked up.  If Key West’s Blue Paper had not short-circuited media, police, state, and Key West city government efforts to kill serious investigations into Eimers’ slaying, his death by police would have remained, at best, a mystery. Key West’s Blue Paper  acted as a free and critical press which is our best asset for holding local governments to a democratic standard. 

Yet why wouldn’t  a city’s executives want police brutality law suits to disappear?  Payouts, a volatile expense for state and local governments and their taxpayers, can quickly devolve into new expenses.  In most US municipalities if the government cannot disperse its part of a lump-sum settlement it is required to pay the awardee annual interest on the settlements remaining debt.  Cities with  lawsuit payouts that exceed their ability to pay issue bonds to cover the exponentially higher settlement costs and  interest attached to them—Chicago, no stranger to police violations of  civilians’ civil rights,  recently sold almost $1 billion in general obligation bonds—these and other such bonds are usually backed  by property tax payments--just to pay the law suits resulting from Chicago’s ‘finest’ torturing  largely poor, often older, black men.  Los Angeles officials tried unsuccessfully to divert federal funds slated for a ‘No Smoking’ campaign to cover the city’s police violence lawsuits.  And in 2013, Fullerton, California, with a predominately urban population of almost 139,000,  had to sell over $7 million in bonds to cover two liability suits--one of these a $1 million settlement involving police brutality.  Issuing such bonds to pay settlements and court judgments resulting from police violations of civil rights,  locks a city’s taxpayers into decades of debt service payments.  Fullerton City’s bonds, with an interest rate of up to 6% to be paid over a 20 year period, left that city’s taxpayers forking out $550,000 in debt service annually.  Police brutality creates the ponding headache that that never goes away: As taxpayers foot the bill for old settlements and court judgments, new police brutality suits are added and these along with older ones often come with interest payments.

Using tax dollars to pay police brutality settlements and judgments turns Key West’s taxpayers into police brutality underwriters.  In my opinion, we should instead be dedicating tax monies to Key West’s underfunded and racially segregated schools and toward creating adequate public workforce housing.  The next time Key West claims it is without funds to invest in the improvements you want, ask what portion of your taxes go instead toward paying expected and actual local police brutality’s costs. 

Insuring Key West against the economic costs of police brutality is predicated upon the actuarial assumption that police civil rights violations are inevitable.  Indeed, Eugene O’Donnell, former NYPD officer and prosecutor, who is a professor at New York City’s John Jay College of Criminal Justice, argues that “Brutality is part of the police job.” Yet by buying into this mind-set tax payers become partners in allowing and hiding police violations of civil rights: Impunity, fed by a lack of consequences for police brutality, breeds more police lawlessness.  And while it seems--as liability insurers and city managers often claim--that law suits have become a US “cottage industry,” in fact only a small fraction of police brutality’s aggrieved victims even file a suit, with few of these suits ever becoming viable,  and then only a small portion  of these receive a court-mandated judgment or settlement.  Meanwhile, those risk-managing public images of blame for lawsuit costs promote the claim that, ‘Everyone wants to sue and predatory lawyers reap the gains.’

In fact, insurers and their actuaries know that police civil rights violations occur regularly in the US.  Corporate liability insurers recognize that police lawlessness is institutionally rooted in what some criminologists call a “defensive bureaucracy,” which is why police organizations do not yield to transparency.  This protects illegal police actions which often emanate from the implicit and explicit commands of higher-ups.  If police brutality were merely an unusual,  atypical action of  ‘a few bad cops,’ as we are regularly told, then there would be no need for corporate insurers and their agents to develop new police liability insurance lines, or to tweak existing ones to enhance client affordability,  or to--as insurers say-- “prospect” for new government clients.  Police liability insurers need police lawlessness, or at least a government’s fear of its consequences, to grow their client liability insurance base.  In turn, police liability insurers protect themselves against catastrophic losses—as these are defined by the profit/loss expectations of their boards of directors—by taking out a “reinsurance” policy that transfers some of their risk to other insurers or alternative institutions.  And of course police liability insurers also off-set risk by wagering on the stock market to (hopefully) fatten their holdings against multiple insurers’ catastrophic disasters. 

Key West’s Citizen Review Board (CRB) is right to finally request an FBI investigation into Charles Eimers’ death.  The Monroe County Commissioners should support this initiative; it might uncover and disclose new information for the CRB, the latter is yet another, albeit small,  taxpayer cost generated by the past police lawlessness in Key West. All Keywesters will continue paying the moral costs of Eimers’ death.  Lawless police, with their Superintendents, Chiefs, and Commanders, and the other public officials who enable and hide police lawlessness, as well as bystander taxpayers who fail to question where their taxes are going, weaken the quality of America’s already very imperfect democracy. 

Using city revenues to manage and thus hide, rather than eliminate, police lawlessness is one of the greatest threats to democracy on streets, parks, and beaches where most Keywesters live.  Public police actions powerfully communicate for all to see, which people have rights—“good citizens”-- and which people do not—the apparent and actual homeless, the assumed and actually mentally ill, and  poor people of color whose status as ‘matter out of place’ offends business and public consciousness.

*Martha K Huggins’ 8 books and numerous articles have been published in the US and internationally. Writing on human rights, her 40-year research and college and university career (Union College, Schenectady, NY and Tulane University, (New Orleans, LA) have focused on police violence in the US and Brazil.