Police officers seldom charged in fatal shootings

Kim Foxx’s decision this week not to charge officers involved in the killings of Adam Toledo and Anthony Alvarez was not unusual, experts said.

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Cook County State’s Attorney Kim Foxx briefs the media on the office’s decision to not pursue criminal charges in the shooting deaths of 13-year-old Adam Toledo and 22-year-old Anthony Alvarez during a press conference, Tuesday, March 15, 2022.

Anthony Vazquez/Sun-Times

Adam Toledo and Anthony Alvarez were shot and killed by Chicago Police officers just days apart last March, deaths that were captured on bodycam video that shocked many in the city and prompted protests.

But when State’s Attorney Kim Foxx announced Tuesday the officers who pulled the trigger in each case would not face criminal charges, it was not shocking to legal experts.

“I will not say I was surprised,” said Chicago defense lawyer Tony Thedford. “I will say that I hope that the State’s Attorney’s Office will put similar scrutiny on cases brought against others who are suspects in shootings, because I know it does not take them a year to decide whether or not to charge my clients.”

Despite the high-profile and public outrage that attends many police shootings, police officers seldom face charges for on-duty killings. Police kill around 1,000 suspects a year across the U.S., but since 2005, only 155 have faced murder or manslaughter charges, according to databases maintained, respectively, by the Washington Post and the Police Integrity Research Group at Bowling Green State University. Only 51 have been convicted, most for charges other than murder.

Prosecutors have to clear a high bar when it comes convince a judge or jury that a police officer was not justified when they pull the trigger, simply because officers are typically doing their jobs when they use deadly force.

“Juries don’t like to second-guess an officer making a split-second, life-or-death decision,” said attorney Thomas Needham, a former prosecutor who spent three years as general counsel for the Chicago Police Department. “When they are reasonably in fear of their safety or the safety of others, they can use force, and if they fear lethal force, they can use lethal force. It all comes down to what seems ‘reasonable.’”

Former Kane County State’s Attorney Joe McMahon, the special prosecutor who led the successful prosecution of former CPD officer Jason Van Dyke for the murder of Laquan McDonald in a 2014 on-duty shooting, said the circumstances in the Toledo and Alvarez shootings were significantly different.

The officers had seen both Toledo and Alvarez holding guns in the moments before they opened fire, were all but alone as they gave chase, and seemed to reevaluate the situation after they fired the initial shots. McDonald was holding a knife but was largely surrounded by multiple police vehicles when Van Dyke arrived on the scene, and he immediately fired all 16 shots in his magazine at the 17-year-old.

“These cases can turn on one or two facts,” McMahon said. “Had Van Dyke fired one or two times, and then immediately ran up and rendered aid, I think it might have been difficult to prove.”

Van Dyke’s lawyer, Dan Herbert, praised Foxx for weighing “mitigating factors” in her decision on charges, knowing that a jury would have looked at those factors.

“The elements needed to charge a murder are easily met in Illinois law, but in this case she realized the mitigating factors and did not charge him,” she said. “She recognized that these were officers in a highly stressful situation.”

Lesser charges, like aggravated assault or reckless homicide, likely faced similar hurdles, Needham said.

“Police officers are allowed to fire their weapons when in fear of harm, and there is nothing reckless when they open fire on someone to defend themselves,” he said.

Needham said civil lawsuits against the officers and CPD might have better odds of swaying a jury, and that the officers could face discipline for violating departmental rules during the chase. A push to amend CPD rules for footchases began immediately after the shootings, Needham notes.

“As a society, we have said that we want police to chase the bad guys. That may be changing, but the law has not,” he said.

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