Why It’s Impossible to Indict a Cop
How to police the police is a question as old as civilization, now given special urgency by a St. Louis County grand jury’s return of a “no bill” of indictment for Ferguson, Missouri police officer Darren Wilson in his fatal shooting of an unarmed teenager, Michael Brown. The result is shocking to many, depressingly predictable to more than a few.
Can the cops be controlled? It’s never been easy: according to one old sociological chestnut, the monopoly on the legitimate use of violence is what defines modern government, and this monopoly is jealously protected against the second-guessing of puny civilians.
First, the big picture. Last year, the FBI tallied 461 “justifiable homicides” committed by law enforcement—justifiable because the Bureau assumes so, and the nation’s courts have not found otherwise. This is the highest number in two decades. A USA Today analysis of the FBI database found an average of about ninety-six police homicides a year in which a white officer kills a black person.
Perhaps the most disturbing thing about these police killings, many of them of unarmed victims, is that our courts find them perfectly legal.
Chapter 563 of the Missouri Revised Statutes grants a lot of discretion to officers of the law. The statute authorizes deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony… or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”
But this law is not an outlier, and is fully in sync with Supreme Court jurisprudence. The legal standard authorizing deadly force is something called “objective reasonableness.”
This standard originates in the 1985 case of Tennessee v. Garner. The case involved a Memphis cop, Elton Hymon, who shot dead one Edward Garner: 15 years old, black and unarmed. Garner had just burgled a house, grabbing a ring and ten bucks. The US Supreme Court ruled that a police officer, henceforth, could use deadly force only if he “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The ruling required that the use of force be “objectively reasonable.” How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others.
“Objectively reasonable”—what could be wrong with that? American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.
The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. Not surprisingly then, legal experts find that “there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare,” says Walter Katz, a police oversight lawyer who served on the Los Angeles County Office of Independent Review until it disbanded in July of this year. According to Erwin Chemerinsky, dean of the UC Irvine Law School, recent Supreme Court decisions are not a path towards justice but rather a series of obstacles to holding police accountable for civil rights violations. Given the deference and latitude hardwired into the law, “there is just an underlying assumption that the officer did not engage in criminal activity,” says Katz.
Some observers see hope for police reform in the ubiquity of smartphone video recorders. It’s true that the ever-growing supply of police misconduct videos fuels the anger needed to sustain reform efforts, and even occasionally leads to police officers being disciplined or prosecuted. It would certainly be a good thing if police departments invested less in military gear and more in dashcams and GoPro cameras; with the right department protocols and practices, these cameras strengthen police accountability.
Riot police in Ferguson, Missouri (AP Photo/Jeff Roberson)