This op-ed was first featured in the Detroit News (subscribers only)

It’s been more than two weeks since a Grand Rapids Police Department officer pinned Patrick Lyoya to the ground and shot him in the head at point-blank range. The GRPD and the city have promised transparency and accountability and a full investigation. But despite calls from Lyoya’s grief-stricken family and from the traumatized and outraged Grand Rapids community, the officer’s name has been withheld. Why?

The official justification is that the officer has not been charged, and the names of suspects aren’t released. That’s an unsatisfying explanation because the names of suspects are released all the time when it would help the investigation. And that’s what it would do here.

Sure, there are times when investigators don’t disclose a name. Sometimes they don’t want suspects to know they are suspects. And sometimes investigators worry that a suspect may flee. That’s fair enough, but there’s no reason to think either of those reasons apply in this case.

In fact, investigators often release suspects’ names because investigators know that the public has relevant information. Take the recent public subway shooting in Brooklyn. The police almost immediately named a “person of interest,” asked for the public’s help, and even sent out alerts asking residents to share information about the suspect. The public’s response didn’t just give investigators and prosecutors lots of additional information, but actually led to an arrest.

Investigators here already know who killed Lyoya, and they know where to find him. But they still need the public’s help with the investigation. A full investigation — which is what we’ve been promised — doesn’t just focus on the final seconds before Lyoya was shot. And it doesn’t just focus on the minutes leading up to Lyoya’s death, where the officer unnecessarily escalated a simple traffic stop of a man with limited English proficiency who seemed clearly confused by what was happening.

A full investigation looks at the context. A full investigation asks: How did this officer treat Black people and other people of color? Did he have a history of aggressive stops? How did he treat immigrants? Has he used excessive force before? How did he act when he pulled over White motorists — did they, unlike Lyoya, get a friendly “license and registration, please”?

To answer these questions, investigators need the community’s help. And to provide that help, the community needs the officer’s name.

The GRPD has a long history of aggressive, violent and racist encounters with people of color. According to a 2017 study, Black drivers are more than twice as likely to be stopped by the GRPD than White drivers. GRPD officers have handcuffed and pulled guns on Black and Brown children, have racially profiled a Latino Marine Corp veteran who ended up in immigration detention (even though he had his U.S. passport on him when arrested), and have beaten motorists after traffic stops. In one such incident, a little over a year ago, an officer told a Black man who’d been punched in the face, “You lucky you didn’t get killed.”

It shouldn’t take luck to avoid death in traffic stop.

Because we don’t know the name of the officer who killed Lyoya, we don’t know how he fits into this pattern. It’s not enough for investigators to look at the officer’s personnel file. The GRPD’s powerful police union has negotiated a contract under which disciplinary records are only kept for two years. Even for that short window, however, records won’t exist for complaints that residents don’t file.

Many Grand Rapids victims of police misconduct see no point in filing complaints, because they have no confidence that the GRPD’s Internal Affairs Unit will be objective, or that the city’s weak Civilian Appeals Board will be able to do anything.

For example, after police Captain Curt Vanderkooi called immigration on Marine Corp veteran Jilmar Ramos-Gomez based simply on seeing his picture and hearing his name, Internal Affairs concluded that the captain hadn’t violated the city’s impartial policing policy.

And after the Civilian Appeal Board found there was in fact bias, the union successfully got an arbitrator to reverse the captain’s 20-hour suspension. If that’s what happens in a high-profile case, you can understand why residents think it is useless to file complaints when they’ve been mistreated.

Any past misconduct by the officer matters to the investigation of Patrick Lyoya’s killing.

To find out about this officer’s history interacting with the community, investigators are going to have to ask the public for help — just as they do all the time in lots of other cases. We need an investigation that is thorough and complete, which it won’t be if investigators don’t try to understand the context.

Withholding the officer’s identity is damaging the integrity of the investigation. He should be named.

Miriam Aukerman is a senior staff attorney with the ACLU of Michigan. Aukerman litigates on a broad range of civil liberties issues, with a particular focus on immigrant rights, poverty and criminal justice She is based in Grand Rapids. 

Patrick Lyoya was killed at the hands of a Grand Rapids police officer. Now, it must be investigated by an outside prosecutor. The Grand Rapids Police Department and city officials’ lack of response, and long history of failing to hold police officers and their leaders accountable, are what led to Mr. Lyoya’s killing. Appointing a prosecutor outside of Kent County, who does not work regularly with the GRPD, is one step toward accountability. In many states it is legally required to appoint an outside prosecutor and is widely acknowledged to be best practice.  

Prosecutors who work day-to-day with a particular law enforcement agency should not be responsible for prosecuting police shootings by that agency.

Police work daily with prosecutors and exert significant control over them in both formal and informal ways. For example, in sociological research examining police and prosecutorial practice in Chicago, prosecutors described pressure to comply with a police culture of “silence and violence” and to operate with “blinders” on when prosecuting their regular caseload. This meant that questioning an officer’s version of events, even where clear signs of official misconduct existed, was seen as a sign of  “disrespect” to the officer. Similar, or even stronger, pressure to apply “blinders” would apply when deciding whether to charge a police officer for an on-duty homicide.

Accordingly, any decision by prosecutors not to pursue criminal charges against an officer in a law enforcement agency that they work with on a day-to-day basis will raise questions about the ability of the prosecutor to review the evidence objectively. Failing to address this issue will undermine public trust not only in individual case decisions but in the legal system as a whole.*

Multiple states have legal requirements for an external prosecutor in police killings.

In California, state law authorizes the Attorney General to investigate and, if warranted, prosecute officers for police killings of unarmed civilians. In Connecticut, state law requires the Chief State’s Attorney to designate an outside prosecutor for every investigation of a police killing. In Maine, state law grants exclusive responsibility to the state Attorney General to direct and control any criminal investigation of officer use of deadly force. In New Jersey, under a statewide directive, the state Attorney General investigates and, if warranted, pursues prosecutions in all police killings. In New York, state law requires the state Attorney General’s Office of Special Investigation to investigate and, if warranted, prosecute police killings and deaths in custody.

Reliance on outside prosecutors is considered a best practice, including by some law enforcement leaders.

The White House’s 2015 Task Force on 21st Century Policing (which was co-chaired by former Philadelphia police commissioner Charles Ramsey and George Mason University criminology professor Laurie Robinson) recommended that jurisdictions adopt mandatory investigations led by external, independent prosecutors whenever police use of force results in death, an officer-involved shooting results in injury or death, or a person dies in custody.

How to structure an outside prosecution

The system that states have most commonly used for an outside prosecution is to create a dedicated office within the Attorney General’s office that both oversees an independent investigation and then makes prosecutorial decisions based on that investigation. Where no state-level system exists, the White House Task Force on 21stCentury Policing recommended that local authorities arrange for another jurisdiction to handle the investigation and prosecution decisions. Any agency assigned should have sufficient resources and experience to handle this type of case.

^{*Kate Levine, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447 (2016) (arguing that local prosecutors have a structural conflict of interest that impacts the legitimacy of their role when investigating and deciding whether to prosecute police officers in the law enforcement agencies they work with).}