Derek Ridgley, Nederland. In the past year 991 people have been shot and killed by police in the U.S. This number is not unusual; over the past five years an average of 1,000 people were killed annually in police shootings. These statistics underpin a raging debate about law enforcement reform. The media narrative has largely focused on the Black Lives Matter movement and racial disparities in law enforcement. This is understandable because on a per capita basis people of color are far more likely to be killed in a police shooting than white people. However, research also reveals that the percentage of police encounters that end in a fatal shooting is effectively the same regardless of race. While this begs a number of legitimate questions about the over policing of minority communities, our cultural tolerance for violent law enforcement techniques appears to be a much broader issue. As the Derek Chauvin trial marches ahead, this is an ideal moment to look past red/blue political distortions and reexamine our attitudes about police violence. 

American law enforcement is famously decentralized, with 17,985 agencies deployed by the federal government, city police, county sheriffs, and highway patrol. Those 18 thousand agencies each operate by their own policies. There are no uniform standards for police conduct and acceptable policing techniques. The only universal constraint on police violence is the Constitution. The protections within the 4th Amendment (freedom from unreasonable search and seizure), 5th Amendment (guaranty of due process, freedom from self incrimination) and 8th Amendment (freedom from excessive bail, cruel and unusual punishments) are civil rights guaranteed to all regardless of local policing codes.

To the extent that there is a consensus definition of police brutality, it is the excessive or unwarranted use of force by law enforcement officers. The trick lies in establishing what types of force are excessive or unwarranted. By definition, the worst example of excessive force is inappropriate lethal force. The circumstances where the use of a deadly force is allowed are ambiguous and subject to geographic differences. Should there be 18,000 rulebooks or one national standard? There is also no consistent policy mandating the use of non-lethal techniques (e.g. Tasers, bean bag guns, rubber bullets) instead of guns.

The judicial shield known as ‘qualified immunity’ makes it extremely difficult to monitor excessive force allegations. Qualified immunity is a legal doctrine that protects officers from civil litigation after incidents of police violence. This doctrine was created by the Supreme Court in Pierson vs. Ray (1967). Its stated rationale is protecting law enforcement officers from frivolous lawsuits and liability where they acted in good faith in unclear legal situations. In practice, the doctrine has enabled police unions to limit accountability to civilian oversight, and to bury the data needed to track individual officers accused of using excessive force. 

One of the biggest debates surrounding police violence is the use of lethal force against fleeing civilians. In 1985 the Supreme Court (Tennessee vs. Garner) struck down a Tennessee statute that allowed police to “use all the necessary means to effect the arrest” of an individual fleeing detention. “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,” stated the majority decision. This precedent should have ended “flight” and “resisting arrest” as a justification for lethal force.

Since that time justification for lethal force has mostly focused on whether the suspect poses an imminent threat to the officer or the public. In the abstract that sounds reasonable. The problem is that a 1989 Supreme Court case (Graham vs. Connor) assigned ultimate authority for determining the severity of a threat solely to the police. Only an officer’s subjective perception determines whether lethal force is justified. 

This subjectivity is at the heart of debates about police reform. It animates BLM stories like the 2014 shooting of Michael Brown (fleeing, unarmed) and less notorious cases like the 2019 shooting of Ethan Murray (unarmed homeless man with mental health problems who resisted police). Were they an imminent threat? ‘Obey or die’ policing is the issue in such cases, wherein police exhibit no tolerance for panic, mental illness, drug-induced behavior or simple mistakes. Noncompliance during arrests for minor offences shouldn’t escalate to death.

Thanks to qualified immunity, contextual data on police shootings is incomplete. However, a database compiled by The Washington Post details more than 5,000 police killings since 2015. In more than 400 examples the victim was unarmed and in 221 cases the victim had a toy weapon. In over 2,000 incidents the victim was shot in the act of fleeing, and in 1,430 examples the victim had a history of mental illness. Empirical evidence thus suggests the lethal force standard set forth in Tennessee vs. Garner has been routinely ignored, and we now need a more consistent national policy.

(Originally published in the April 22, 2021, edition of The Mountain-Ear.)