This commentary is by James W. Baker of Arlington, who was chief of the Vermont State Police and interim state corrections commissioner before he retired. He now heads JW Leadership Consulting LLC.
The recent decision by Attorney General Charity Clark to charge two Vermont state troopers with simple assault and reckless endangerment is bad judgment. This decision will have a dangerous and chilling effect on those we ask to mitigate harm in our communities.
After reading the affidavit, I would guess that Attorney General Clark wants to send a clear message to those who want accountability for police misconduct. As someone who for 45 years in Vermont has worked to hold those who violated their oath accountable, I know how and have held police officers accountable — this is not how it should be done.
To stretch a possible policy violation into a criminal case is dangerous and not a balanced delivery of justice. The attorney general and her staff have to know they are stretching the boundaries to send a statement to those who demand accountability at any cost.
Already the superior court judge has found no probable cause for the simple assault charge. Why would two prior attorneys generals not bring charges? The circumstances and facts of this case have not changed in 11 months. The only change is the person making the decision to charge. And why?
Police officers face an incredibly difficult, dangerous and stressful job. I have seen those challenges grow more demanding. This is especially true in the past several years, with mental health and substance use disorder presenting to the policing community impossible options to deal with the chaos brought on by these increased demands.
That is exactly what the state police response was in this case, a response to a person in crisis at 2:12 in the morning. Why the state police? It is simple; there is no one else to call.
I do not know either trooper facing charges, but I highly doubt that those troopers responded to yet another call with a person in crisis with the intent to do further harm.
The affidavit describes what they found upon arrival to the scene — a subject on a roof brandishing a handsaw (a potentially dangerous weapon) and failing to follow verbal commands to put the saw down and come off the roof. There was evidence of potential self-harm that had occurred (blood on his hands and head). The suspect was ducking in and out of a broken window. He was on a roof where he could easily jump to a deck structure and charge the troopers, as well as a group of people who had gathered. In another words, he was not contained. He was not responding to commands.
This is the very reason why less lethal resources, such as bean bags, have been provided as a tool — to get compliance of subjects who could harm themselves or others.
This is not a case that is widely covered in the national news. It is not an application of a chokehold, an officer shooting someone in the back, an individual beaten to death or police officers who are out of control as a result of not maintaining composure. This is a case of two troopers attempting to get compliance of a person who could harm themself or others by deploying a tool provided to them for the very circumstances they were confronted with.
The outcome was not the intended outcome, but it was not the intent of the troopers to do further harm.
Let me be clear: I support holding those who are charged with the safety of our citizens to a higher standard. I have disciplined, fired and recommended criminal charges for those who intentionally did harm. That is why I do not weigh in on these types of matters often, but this case is beyond the pale.
In an effort to demonstrate that she is going to be tough on law enforcement, Attorney General Clark has taken a case that is weak at best. The troopers did not have the benefit of hindsight and they were not out of control or being aggressive. The bar for charging police officers with a crime is now so low, the expectation is that any use of force could be twisted into a criminal case.
In 2015, then-President Barack Obama, in response to national unrest around cases of police violence, commissioned the President’s Task Force on 21st Century Policing. The report was generated by a task force that was made up of what America looks like, and included the advocacy community. It is the blueprint in creating safer communities.
In that report, one of the recommendations of the task force was a focus on procedural justice, not only for those affected by police actions, but for the police as well. The attorney general’s decision is not practicing procedural justice.
I urge Attorney General Clark to step back and rethink the best way to bring accountability to policing through the lens of procedural justice. It is not productive to push the limits on a policy violation and turn it into a criminal case. She has already heard that from a superior court judge.Â