Pensacola Fun House

"Well now I feel like an asshole for speaking for the cop. It was my understanding that these were not policy of the PPD, and I apologize for my previous comments on this blog... ."

-- Comment from a reader of Progressive Pensacola blog

When it comes to some of the more arcane areas of law governing police misconduct and local government immunities for wrong-doing, the public generally is clueless. The complexities of the law always have posed serious questions for our democracy. One of the chief ones is this: How can citizens cast intelligent votes for elected officials who will have law enforcement responsibilities -- like a state's attorney, for example, or city officials ultimately responsible for the police department -- when what citizens think they see happening is mostly a legal smoke-screen?

Once a police misconduct case enters the legal system, for the average person who takes an interest it's like stepping into a Fun House. The "case" becomes a hall of mirrors filled with distorted images where nothing is as it seems. At one turn, little things look big and big things look diminished. At the next turn, those big things strangely shrink and the small things loom large. At yet another twist or turn, the public's attention is misdirected altogether by weird, unexpected noises that send a thrill up the spine but amount to nothing like they seem. And, all the while what's really going on is hidden from public view behind the scenery.

So it has been in the aftermath of the violent death of 17 year old Victor Steen, who was crushed by a Pensacola Police patrol car at the end of a late night chase down city streets, across sidewalks, and through darkened parking lots. He was being pursued by Police Officer Jerald Ard for no better reason, apparently, than the officer (who was white) thought Steen (who was black) looked suspicious.

So far as the public has been told, there was not even probable cause to suppose a crime had been committed. Yet, officer Ard was so intent on making a "citizen contact" that he tried to temporarily paralyze the teen-ager with a taser-gun fired through the open window of his squad car. No crime had been reported. No criminal behavior had been witnessed. The boy was riding a bicycle without a light and it was late at night. Ard ordered him to stop. He didn't. For that, the boy was cut down dead.

Yet, police officer Ard managed to escape even the possibility of being tried in a court of law to determine if he was criminally negligent when State's Attorney Bill Eddins invoked the rare procedure of an "inquest", which has roots in the 12th century before grand juries had even been conceived. When a county judge who normally sits on small claims and traffic cases concluded as the "inquest" officer that the facts presented by Eddins' side, only, showed that Steen did not die by reason of criminal negligence, the police officer was off the hook. He did not even bother to attend the inquest.

Early this week, the Pensacola Police Department publicly announced it was disciplining that same police officer. Jerald Ard was suspended from work for 'violating department policy' by shooting at the Steen boy with a taser gun from the moving patrol car and chasing him so closely that he was "unable to avoid running over" the boy with the squad car.

Ard's suspension is for two weeks. Two weeks?? you say. Yes, he'll be back on the streets almost before you finish reading this.

This tragic affair seems only to get worse. Though not literally true, it must be hard for the Steen family to escape the thought that the Pensacola Police Department values young Victor Steen's life as worth no more than a two-week suspension for the cop who killed him.

The suspension wasn't announced until well after the inquest was over. Think that's a mere happenstance? Think again.

Progressive Pensacola has obtained a copy of an internal investigation report. It, too, was conveniently released only after the inquest. The report, bearing an April 1 date, concludes that officer Ard violated policies of the Pensacola police department. Writes the author of the report (with who-knows-how-much help from undisclosed lawyers):

It is the policy of the Pensacola Police Department to engage in pursuit driving techniques only when the apprehension of a suspect in another vehicle is authorized by the law and when the employment of pursuit driving techniques does not impose an unreasonable or unnecessary risk to public safety or property.

Even as it is described in the report, the purported departmental policy is manifestly tautological. It also suffers from such extreme generality as to be equivalent to saying, 'When in pursuit of anything or anyone you feel like chasing, drive as safely as the law allows and you think you should.'

What's really going on here? Our opinion is that it's nothing more than an elaborate charade by local officials to fluff-up the city's potential defense to a federal civil rights claim which could be brought along with a state tort claim for negligence. The Florida legislature long ago placed a tight cap on the amount for which a citizen can sue under state law when injured or killed by a local government agency's employee. If a cop snuffs out your life, like that of Steen's, the maximum damages allowed are only $100,000 under state law. These days, you could put that sum on a credit card; there's hardly a hurricane claim for property damage that low.

With federal law civil rights claims, however, damage totals can be potentially much higher. But certain legal doctrine have grown up in recent times under the influence of the conservative-dominated U.S. Supreme Court to limit the federal law's application. No need to get too deep into the weeds here. We'll try to make it as simple as possible. You can follow along by using the same time-chart the city's lawyers probably have in mind: (1) First, protect the officer; (2) second, protect the city police department from a large verdict.

1. The Officer.

One important civil rights doctrine essentially says that public employees, like a cop, are personally immune from being sued for wrong-doing unless it appears there's a case to be made that they acted in "bad faith." Accordingly, the first item on the agenda is to find a way to excuse the cop's behavior as completely innocent of any improper motives. This is known in the trade as "good faith immunity."

Getting a county judge to 'recommend' no prosecution for manslaughter was an important step for the city in the future defense of a wrongful death suit. Because the judge had to rely exclusively on evidence cherry-picked by the State's Attorney, it may not entirely close the door to suing officer Ard personally, but it certainly helps.

2. Agency liability.

The second task is to build a defense for the police department policy-makers. That's a bit trickier. Civil rights law essentially requires that public agencies can be held at fault only if higher-ups were responsible, or if they had promulgated inadequate policies governing lower-level employees, or if they failed to enforce departmental policies, or if they inadequately trained lower-level employees to understand and abide by department policy. Together, these doctrine can be thought of as "official" or "policy and training" immunity.

Most members of the public knew nothing of this. What the April 1 "disciplinary report" tries to accomplish -- now that officer Ard has been more or less 'acquitted' of wrongful motives and reckless negligence by a county judge -- is to deflect blame from the department and cast it back onto Ard. 'You see?' police department officials are saying, 'We have a really, really good policy and we wrap knuckles whenever a cop violates it.'

That, too, may not wash when all of the details of PPD's actual policies and past training are revealed. The hope, downtown, is that it will help.

Quite a few citizen commentators on various local newspaper web sites and blogs initially leaped to the defense of officer Ard when news of Steen's death first became public. The county judge's inquest finding only strengthened them in that premature view. Now, many of them are chagrined to discover that, as it seems, Ard was at fault after all.

As we read it, however, the April 1 police department "disciplinary report" is evidence of nothing more than this: lawyers are working closely with PPD administrators to bolster the city's defense against a multi-million dollar wrongful death lawsuit soon to be filed against the city.

For all we know, this has been explained to Ard, himself, and he is down with it. In which case, one might say that each of the relevant actors, in turn, has more or less given his "official" seal of approval for the killing of Victor Steen to the other.

It remains to be seen if the local courts will be as forgiving. The law will work its wondrous ways quite apart from public sentiment. That's a good thing. But citizens are getting a distorted perspective about what's really going on. And that's a bad thing, especially when as voters the public periodically must cast votes on which politicians should be placed in charge of our law enforcement agencies.

The solution to this dilemma of democracy is not to remove control over the police from the hands of the voters. It is for citizens to become better informed about the realities of our legal system. They should summon the patience to wait until all the facts are known before reaching conclusions about who is responsible for the death of young Victor Steen and what price we should pay for a young life ended so tragically.

It also would serve the interests of citizen democracy if the state's attorney adopted the same approach as state's attorney Willie Meggs did in Tallahassee: abandon the antiquated "inquest" system used mainly to excuse deaths-by-cop, and let the more usual wheels of justice grind equally for all.