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What Hennepin County Attorney Mike Freeman did by taking responsibility for the Jamar Clark case—and not using the broken grand jury system—is most certainly important and commendable. Nationwide, in case after case, district attorneys have used grand juries as a way to avoid prosecutions of police in cases of use of deadly force. In Ferguson, New York and Cincinnati, we saw prosecutors then report the results of the grand jury as if they had been trials, where all evidence is presented.  Grand juries are not trials. In cases of police use of deadly force, they are escape hatches.

Freeman had initially said that he too would punt his responsibility as a prosecutor to a grand jury, and many were upset that the community was once again being asked to trust in a system that in Minnesota in recent years has seen not one officer charged in cases of deadly force.  As the Star Tribune reported, “Since 2000, at least 143 people in Minnesota have died after being shot, Tased or restrained by a police officer. To date, not a single officer has been charged in any of those deaths.”

Hennepin County Attorney Mike Freeman (Photo, KSTP)

And so there was much rejoicing when Freeman reversed himself and announced that he would not only not use a grand jury in the case of Jamar Clark but that, under his watch, no officer-involved shootings would go to grand juries.

Since Wednesday’s press conference, when Freeman announced that the two officers in the Clark case would not face charges, the County Attorney has also been commended for making available much of the video and documentary evidence he used to reach that conclusion.  He has been applauded, by fellow politicians and editorial boards, for the seemingly unprecedented transparency in making this move.

But can we pause for a moment and ask the question, what are we praising when we praise Mike Freeman?

As I read these songs of praise for the County Attorney because he took responsibility and demanded transparency, the question that came to my mind was, is the bar really that low when it comes to black lives and police accountability?  I know that after Ferguson, Cincinnati, New York and too many other places, this does, indeed, seem to be an aberration.

But isn’t that, in fact, the problem?  Shouldn’t an elected official owning his decisions and being transparent about them be the minimum we expect when it comes to investigating instances where the arm of the state kills a human being?

What we are praising when we praise Mike Freeman is the apparent societal understanding that when it comes to black lives, the minimum is enough.

It is not.

About that Press Conference

Wednesday’s press conference started out well enough.  Freeman began by giving his condolences to Jamar Clark’s family and saying that Jamar deserved to live a full life.  He also did well to preface the substance of his statement by citing the very high bar that our legal system places on finding a police officer culpable in a situation of deadly use of force.  The sad truth is that the law gives police almost complete impunity in these situations. Freeman stated that “police officers in Minnesota are justified in using deadly force in the line of duty when necessary to protect the officer or another person…” He also cited Graham vs. Connor, where the “US Supreme Court held that the use of deadly force by a police officer must be evaluated from the perspective of a reasonable police officer on the scene… not from the perspective of a civilian” or from the benefit of 20-20 hindsight.

There is seemingly no objective criteria by which to judge whether a police officer is in danger.  If he feels in danger, he is in danger. A high bar, indeed.

In his prefatory remarks Freeman also made clear that he feels police departments across the country must re-evaluate how they use deadly force. Police, he says, “must emphasize de-escalation…Police must use discussions, negotiations…They need to use the lowest use of force possible… We simply must reduce the number of situations where guns are discharged by police.”

Perhaps, I thought, he is setting the stage to argue that while the police officers in this case use of force was unfortunate, it was not illegal.  I was wrong.

After describing police reforms as a core belief, Freeman goes on to say:

“Now, I want to be very clear. These remarks are not a reflection of the actions of officers Ringgenberg or Schwarze on November 15, 2015. This case is not at all similar to some of those seen around the country… in Chicago, in Cleveland or North Charleston, South Carolina. These officers were called upon to respond to a person who had assaulted his girlfriend and interfered with the paramedics who were trying to assist her.”

From here on out, the rest of the press conference might as well have taken place in Chicago, Cleveland, North Charleston, Ferguson, or far too many other places.  Freeman the Champion of Police Reform was replaced by Freeman, Defense Attorney of Police Officers.

In detailing the events of the evening Clark was killed, he quoted none of the eyewitness accounts of that night, explaining that their testimonies were contradictory and therefore did not corroborate whether or not Jamar Clark was handcuffed. The prosecutor’s skepticism, however, was reserved exclusively for those eyewitnesses.  He read from the police report dramatically, repeating over and over the alleged final words of Jamar Clark, “I’m ready to die,” even though those words were uncorroborated by anyone other than the two officers.

The not-so-subtle message was clear: Police Words Matter. Black Eyewitnesses’ Words Do Not.

A Missed Opportunity for Leadership and Healing

Like I’m sure a lot of Minnesota, I spoke with friends after the press conference, sharing our reactions.  Some of these friends are leaders active in Black Lives Matter or who spent many hours at the 4^th Precinct Occupation last fall.  No one was surprised by Freeman’s decision–we’ve sadly come to expect these outcomes–but all were appalled by the press conference. We talked and asked–fine, so this is the end result.  But couldn’t you have at least told the story differently? Couldn’t you at least suggest some things that the police officers could have done differently?  Did they really practice the de-escalation you said you believed should be police practice?

Freeman only acknowledged the violent take-down of Jamar Clark to say that the police officer learned that technique “in San Diego.” We have since learned this is not considered a proper procedure in Minneapolis. And we knew before that this same officer had actually been sued in San Diego  precisely for using this take-down method! How differently might we all have reacted to the press conference, I thought, if Freeman –following his own stated beliefs about the need to change police practices—had said something like, “this, to me, does not look right. It could have been done differently. They could have negotiated, had a conversation. Unfortunately, given the high legal bar for proving officer misconduct, this is not illegal.” But, no, Freeman could not find a single thing to criticize about the officers’ behavior.  Everything they did was by the book.  Everything. This isn’t, of course, that much a surprise, when you step back to realize that he took every word of their report as Bible.  Of course they look like heroes.

All day I was consumed with thinking, what if he had just presented this evidence differently, might he have at least led, put us on a path toward collective healing?  But later that evening I realized that, in thinking that, I too had been seduced by what seemed like a mountain of evidence Freeman presented.  What woke me up was reading a Facebook post by James C. Burroughs, an African American attorney in Minneapolis.  His post has now been shared hundreds of times, certainly because he expressed so beautifully, in such a heart-wrenching manner, that judging from an evidentiary standpoint, how unconvincing Freeman’s case actually was.  Burroughs wrote:

No Justice for Jamar

As a lawyer and Black man today is a numbing and solemn day. I watched the decision of County Attorney Mike Freeman today as he decided not to prosecute the officers who took the life of Jamar Clark. I hoped Mike, who I have known for years and respect as an attorney, would show me evidence that supported whatever his decision would be. I hoped this evidence would show me that there can be, in some cases, justice when fair people like Mike objectively review the evidence. I knew today I would see evidence that showed me video of 1) how Jamar Clark interfered with the paramedics and refused to let his girlfriend get treatment: 2) how Jamar Clark attacked the officers with no provocation and went for their guns; 3) how Jamar Clark was so out of control that he had to be subdued by gunfire to the head; and 4) how Jamar Clark was not handcuffed and how he was using his hands to attack the paramedics and officers. I was also expecting evidence that showed a balanced review of witness statements that showed how things transpired. I expected Mike not to solely rely on officer testimony. I expected an attempt at justice, even though I might not agree with the final decision. I have been a lawyer a long time so I know that the same facts can sometimes lead to different conclusions. I was prepared to give Mike the benefit of the doubt.

I guess I expected too much. The evidence that Mike presented to me and the rest of the public today showed: 1) paramedics placing Jamar’s girlfriend in the ambulance with no interference from Jamar; 2) an officer grabbing Jamar by the neck from behind and jerking him to the ground only 60 seconds after arriving at the scene; 3) Jamar pacing around the scene and talking to officers and paramedics and at no time striking anyone (no provocation); and 4) no clear evidence of any officer trying to reasonably arrest Jamar after reading him his Miranda rights and trying to place him in handcuffs in a standing position.

I also got to hear Mike primarily rely upon officers’ testimony that said “he went for my gun” and that Jamar said “he was ready to die.” This happened 60 seconds after officers arrived at the scene. Surely if Jamar was ready to die he would have charged the officers and went for their guns immediately after they arrived Or maybe Jamar would have jumped in the ambulance and tried to attack his girlfriend saying ” I’m ready to die.” However, that did not happen. Instead, Jamar was on the ground after being thrown there by the officer and said I’m ready to die after having a gun put to his head. I have been a Black man a long time (longer than I’ve been a lawyer) and I guess I have never heard that uttered from a brother when a cop has a gun to your head. A cop you have known all of 60 seconds.

I guess I am numb because I hoped today would be different. I thought I would see a good man and good attorney, Mike Freeman, show me evidence that justified not charging the officers. I hoped I would be able to digest the decision because the evidence showed that no charges should be brought against the officers. I was hoping the cops statements to Jamar would be corroborated by witnesses and at least be believable.

 

Burroughs opened my eyes as to the questions Freeman’s seemingly thorough presentation did not ask and did not answer.  And since I read that, more questions have surfaced.  KARE11 reported that the officer did not follow proper procedure when he violently took Clark down (linked above). Had that take-down–“learned in San Diego”–not happened, Jamar Clark would likely still be alive today. Wasn’t that perhaps worthy of mention?

And although Freeman stated unequivocally that Jamar “had assaulted his girlfriend and interfered with the paramedics who were trying to assist her,” it didn’t take members of the public long to find in the very documents Freeman released that in both her interviews with police, the woman in question–RayAnn Hayes–repeatedly denies being in a relationship with Jamar Clark. In the second interview she explicitly states annoyance with the media for reporting them as being in a relationship and the situation as being one of domestic violence. In the first interview she was asked if he had beat her previously: “No, I don’t know ’em. How can he beat me when I don’t even know ’em?”

That the officer that day came in with a preconceived idea of what happened might not be surprising.  But that that preconceived notion survived Freeman’s investigation to come out of his mouth months later at his press conference–that is inconceivable.

Thursday evening WCCO news has an exclusive interview with Ms. Hayes. We’ll hear her say, in her own words, what happened that night and what her relationship to Jamar Clark was.

Perhaps her words will be heard by the US Department of Justice, which has not concluded its investigation of the case.  Perhaps to them, her words will matter.  They clearly did not matter to County Attorney Mike Freeman.

UPDATE:
Here is WCCO’s interview of RayAnn Hayes, which seems consistent with what she told police in their two investigatory interviews with her. “No dispute. No domestic. None of that,” she said. “You guys are letting these officers go, and trying to put it on me,” she said. Her testimony seems to blow up the entire narrative of Freeman’s press conference:

Tags: Jamar Clark, Mike Freeman