Tuesday, November 24, 2015

Is the Chicago Police Department an Accessory After the Fact?

A Chicago police officer, Jason Van Dyke, has been charged with first degree murder for shooting and killing a black teenager. The killing occurred more than a year ago. If the accounts appearing in the news are correct, the reason the indictment took so long is that other officers covered up the facts of the case.

If that is true—we will know more after the trial is complete—then other officers, probably quite a lot of other officers, were accessories after the fact to murder. Under Illinois law, an accessory after the fact to a felony is liable to the same punishment as the felon.

It will be interesting to see if any of them are ever charged


montestruc said...

I anticipate a lot of pressure by local police to aquit him, which can take the form of non-cooperation with prosecutors and could get worse. Failing that, pressure on Van-Dyke and others to maintain a fiction of sole culpability, failing that things could get really ugly.

Power Child said...

I know nothing about this case other than what I've read here.

However, I have been paying attention to similar stories in the news over the past few years, where white cops kill (often unarmed) black minors. Usually it turns out that the reporting on the case inflates both the innocence/youthfulness of the black minors and the whiteness/racism of the cops.

Like I said, I have VERY incomplete information about this particular case, but if it's typical for what we've been seeing, then I would be skeptical about the accounts appearing in the news.

Richard Ober Hammer said...

Of course what I would like to see, in response to murders by policemen, is more mistrust of the whole government law-and-policing system. I would like to see community-wide comfort with the idea of closing a whole government police department, so the community would be free to rebuild its needed system of law from the grass roots up. The error lies in the public's unquestioning acceptance of government-monopoly law.

I agree, David, that blame should be shared. Not just the one officer who pulled the trigger, but the whole process should come up for public trial. Charging that one officer with first degree murder while letting the whole system (that hired, trained, armed, and cultivated that officer) off the hook fails to distribute culpability where culpability should lie.

Greg said...

Officer, probably, is guilty in something.
Here is the possible, scenario. Officer asked guy to stop, McDonald shows knife and goes away.
Should officer let him go?
What incentives in future will we create after trial?
• You can show knife to make hand to hand combat too dangerous and just go away
• You cannot shoot so let him go
An autopsy report showed that PCP, a hallucinogenic drug, was found in McDonald's system. Officers had trailed McDonald after receiving calls about a man wielding a knife and at one point the teen slashed a front tire of a squad car, police said.

David Friedman said...

I don't have a strong opinion on how guilty the officer is. Eric Raymond has argued that the first two shots were probably justified under the circumstances, the rest clearly not, making it manslaughter or second degree murder.

But it seems pretty clear from the stories that the initial reports from the police department were false and that the police went to a good deal of trouble to conceal the evidence of a crime. If so, that makes any police officers involved accessories after the fact to a serious crime, whether first degree murder or not. I think it quite unlikely that any will be charged.

Unknown said...

The kid was high on PCP with a knife after multiple calls and he slashed a tire on a cop car.
I am sure he wasn't compliant in any way at all and deserved what he got.
Child, teenager, adult, a weapon is a weapon and PCP is very dangerous.
Enough whining already if the kid was at home or at work or at school and not high he wouldn't have died.

Joey said...

Enough whining already if the kid was at home or at work or at school and not high he wouldn't have died.

Yeah, probably. But this can't logically and shouldn't legally be used as an argument to let the cop off the hook. Is death an appropriate punishment for drug use or truancy?

Unless you are giving advice to future potential truants/vandals, the response is a non-sequitur.

Eric Rasmusen said...

I wonder if an accessory after the fact is civilly liable? An individual policeman is judgment-proof, perhaps, but if you could go after a half dozen...

David Friedman said...

Is there an equivalent of accessory after the fact in tort law? If I commit a tort and you help me conceal the fact, can the tort victim collect damages from you as well as from me?

Anonymous said...

The Restatment ( § 876) imposes civil liability (for aiding and abetting) on third parties when: "he knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself." My guess is the victim(s) are out of luck either way, but I imagine they'd have a slightly better chance in a civil suit.

David Friedman said...


That sounds like the equivalent of an accessory before the fact, not after.

Unknown said...

What about the mayor, police superintendent and state's attorney?

Anonymous said...

Comment (d) of the section gives five factors in identifying "substantial assistance": (1) the nature of the act; (2) the amount of kind of assistance given; (3) his absence or presence at the time of the tort; (4) his relation to the actor; and (5) his state of mind.

"Aiding-abetting focuses on whether a ∆ knowingly gave 'substantial assistance' to someone who performed wrongful conduct." 705 F.2d 472, 478.

"'Substantial assistance' can be distant in time and location from the primary wrondoing." Id. at 482.

The 'before the fact' interpretation is more intuitive. But given the trend towards rejecting the distinction, you might be able to argue for a more inclusive reading. That said, the 7th circuit has rejected the argument that civil aiding and abetting liability exists in Illinois (see, 686 F.2d 449, none other than Mr Posner himself).

Another civil option is a 1983 claim, but then we've left the accessory realm altogether.

Excuse my diligence, I'm a law student trying to keep finals preparation at bay.

David Friedman said...

One important point about the civil/criminal distinction is that criminal charges have to be made by the state, so anyone who commits a crime the state approves of simply doesn't get charged. Civil charges, on the other hand, are filed by the tort victim.

In the Black Panther shooting in Chicago in the late sixties, several police officers were pretty clearly guilty of first degree murder--and were never charged with anything. But the survivors sued, and the city, county and state (I'm going on memory) settled for a substantial sum.

Eric Rasmusen said...

From that Posner case: "There is no tort of aiding and abetting under Illinois law or, so far as we know, the law of any other state; all the cases that Cenco has cited with regard to this count are criminal cases. This is not a gap in tort law. Anyone who would be guilty in a criminal proceeding of aiding and abetting a fraud would be liable under tort law as a participant in the fraud, since aider-abettor liability requires participation in the criminal venture."

Eric Rasmusen said...

(1) The video is highly incriminating. This isn't like Ferguson at all. Here, we see the victim walking along parallel to the policeman, not towards him and not moving quickly. Then, for no apparent reason, the policeman shoots him and he crumples straight down. The way the victim is walking he does look like he's on drugs, and had already done crazy things, but by this time there were plenty of police on hand.

(2) The law usually distinguishes between inaction (legal) and action to help a bad deed (illegal). I wonder how that would work here. The City didn't act, which was wrong but was legal. Prosecutors have absolute immunity, if I remember rightly. The City did refuse to make public the video, though, which a court decided was an unlawful act, so maybe that's pro-active enough for whoever made that decision to be criminally liable.

(3) Something interesting about the tort liability possibility is that the City's cover-up was after the fact, so it doesn't have the usual causality needed, but it would be useful to have a tort for acts that conceal torts by other people, since having the evidence is necessary for the victim to be able to win damages.

(4) The City is liable for section 1983 civil rights damages, which is why it paid the family 5 million dollars. I wonder if concealment would be a separate tort under section 1983? Non-prosecution isn't, I should think, because of prosecutorial discretion.

David Friedman said...

There is apparently a suspicious gap in the record from a nearby surveillance camera, which police officers looked at immediately after the shooting. If it turns out that they deliberately erased it--which the prosecutor so far denies--I would think that would qualify as accessory after the fact.

I am not certain, but I think the five million dollar settlement included keeping the video secret. If that is the case, and if there is evidence that those responsible did not intend for the police officer to be prosecuted, does that make the Mayor an accessory after the fact?

Anonymous said...

The shooting looks grey to me. The kid looks like he was walking away because the other guys outnumbered him and were yelling- he spun around to puff his chest and yell back back because that makes sense, for a kid. The cop saw him spin around with steel in his hand and fired because that's a cop's job. Maybe he should have stopped after two shots, maybe he sensibly applied Murphy's Law of Combat #whatsit- 'when in doubt, empty your magazine'. Grey area, routine police blotter swearing contest.

The mysterious disappearing video, on the other hand, is at least negligence- Fire Somebody! or conspiracy- Fire a Bunch! Sue!

But the Outfit that runs Chicago has been based on race riot protection rackets for half a century. I'd strongly distrust any claims made by anyone regarding mysterious unseen videos, alleged police coverups, etc. I don't mind if the crooked mayor gets sued or not. It's Illinois. We are a crooked state. Our governors routinely go to jail. Why not another mayor? Won't change anything.