This op-ed originally appeared in the Los Angeles Daily Journal on Sept. 22.
In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.
The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.
While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?
Many have expressed doubt in the ability of local law enforcement in Ferguson and St. Louis County to secure an indictment against Brown’s killer given how they handled the initial investigation, ranging from the delay in releasing the Darren Wilson’s name to the release of a video of Michael Brown allegedly robbing a local liquor store. Rather, many across the country are hopeful that the U.S. Department of Justice will successfully convict Wilson of violating Brown’s federal civil rights. There are, however, significant barriers to a federal conviction, several of which are related to the very reason that Brown may have been targeted in the first place: race.
If federal civil rights charges are filed against Wilson, it will likely be for violation of Michael Brown’s civil rights through the unreasonable use force. Whether Wilson used excessive force will be based on the reasonableness of Wilson’s actions. In a 1989 case called Graham v. Conner, the U.S. Supreme Court announced that in assessing reasonableness, "[t]he question is whether the totality of the circumstances justifies the force used during the arrest." That is, whether a reasonable officer in the same situation confronting Wilson would have used deadly force against Brown.
Reasonableness, however, is not a racially objective standard. Indeed, legal scholars and advocates have long criticized the “reasonable person” standard for allowing racial and gendered stereotypes to shape perceptions of fear and dangerousness when use of force is at issue. Numerous studies by social psychologists have demonstrated that race shapes perceptions of fear, and therefore notions of the reasonableness of a response in the face of that fear, particularly in the law enforcement context. In many cases, fears that accompany the use of force are often informed by both implicit and explicit racial biases. These biases include beliefs that blacks have a higher propensity for violence and crime. Take, for example, the findings of a recent study by Dr. Jennifer Eberhart of Stanford University. In the study, Eberhart notes that “[t]he mere presence of a Black man, for instance, can trigger thoughts that he is violent and criminal.” She goes on to note that “[m]erely thinking about Blacks can lead people to evaluate ambiguous behavior as aggressive, to miscategorize harmless objects as weapons, or to shoot quickly, and, at times, inappropriately.”
Given these dynamics and the pervasiveness of these biases, juries often identify and side with law enforcement. Following acquittals of police officers, the families of victims killed by police are left to pursue remedies in the civil context. According to one study of 23 lawsuits, the civil awards against police departments for the shooting deaths of African-Americans exceeded $248 million. The awards, however, have done little to prompt broader structural changes to prevent excessive uses of force by police officers in the future. The author therefore concludes that “these monetary sanctions appear to have little or no deterrent effect on the behavior of individual officers.”
In light of the inadequacies of both the criminal and civil legal systems, we are left with this basic question: Who will police the police if the mechanisms of our legal system are ineffective at holding police departments and police officers accountable for causing harm to individuals and communities?
In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.
The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.
While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?
Many have expressed doubt in the ability of local law enforcement in Ferguson and St. Louis County to secure an indictment against Brown’s killer given how they handled the initial investigation, ranging from the delay in releasing the Darren Wilson’s name to the release of a video of Michael Brown allegedly robbing a local liquor store. Rather, many across the country are hopeful that the U.S. Department of Justice will successfully convict Wilson of violating Brown’s federal civil rights. There are, however, significant barriers to a federal conviction, several of which are related to the very reason that Brown may have been targeted in the first place: race.
If federal civil rights charges are filed against Wilson, it will likely be for violation of Michael Brown’s civil rights through the unreasonable use force. Whether Wilson used excessive force will be based on the reasonableness of Wilson’s actions. In a 1989 case called Graham v. Conner, the U.S. Supreme Court announced that in assessing reasonableness, "[t]he question is whether the totality of the circumstances justifies the force used during the arrest." That is, whether a reasonable officer in the same situation confronting Wilson would have used deadly force against Brown.
Reasonableness, however, is not a racially objective standard. Indeed, legal scholars and advocates have long criticized the “reasonable person” standard for allowing racial and gendered stereotypes to shape perceptions of fear and dangerousness when use of force is at issue. Numerous studies by social psychologists have demonstrated that race shapes perceptions of fear, and therefore notions of the reasonableness of a response in the face of that fear, particularly in the law enforcement context. In many cases, fears that accompany the use of force are often informed by both implicit and explicit racial biases. These biases include beliefs that blacks have a higher propensity for violence and crime. Take, for example, the findings of a recent study by Dr. Jennifer Eberhart of Stanford University. In the study, Eberhart notes that “[t]he mere presence of a Black man, for instance, can trigger thoughts that he is violent and criminal.” She goes on to note that “[m]erely thinking about Blacks can lead people to evaluate ambiguous behavior as aggressive, to miscategorize harmless objects as weapons, or to shoot quickly, and, at times, inappropriately.”
Given these dynamics and the pervasiveness of these biases, juries often identify and side with law enforcement. Following acquittals of police officers, the families of victims killed by police are left to pursue remedies in the civil context. According to one study of 23 lawsuits, the civil awards against police departments for the shooting deaths of African-Americans exceeded $248 million. The awards, however, have done little to prompt broader structural changes to prevent excessive uses of force by police officers in the future. The author therefore concludes that “these monetary sanctions appear to have little or no deterrent effect on the behavior of individual officers.”
In light of the inadequacies of both the criminal and civil legal systems, we are left with this basic question: Who will police the police if the mechanisms of our legal system are ineffective at holding police departments and police officers accountable for causing harm to individuals and communities?
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1 comment:
A young man was handcuffed in the back of a police car in my home state of Louisiana. There was a bullet that caused his death. The final report said that it was self inflicted. How can that be when he was searched prior to being put in the car, hands handcuffed from behind, and last but not least the bullet entry was front entry in the chest. Now a family is in mourning. Go figure. I think all law enforcement should be drug tested. It seems to me that these policeman think they are above the law. Those cop all around the US should be taken of the payroll without benefits until investigations are complete.
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