Why Courts Can’t Solve the Problem of Cops Who Kill

By Julianne Hing Nov 26, 2014

Did the legal system fail to deliver justice for Michael Brown when a St. Louis grand jury declined to indict Darren Wilson, the police officer who killed him? Or, was it working exactly as it’s designed? These are the questions many are asking in the wake of yet another defeated attempt to punish yet another cop for the killing of yet another unarmed black man.

Accountability for police violence is so rarely found in the courts that many are urging for a more expansive definition of that elusive justice. What’s more, individual prosecutions of police officers are ill-suited, activists say, to deal with the root of the real problem: racism, and an irrational fear of black people.

"We work to hold individual police [officers] accountable," says Monifa Bandele, a member of the New York City chapter of the Malcolm X Grassroots Movement (MXGM), "But if we don’t really dissect the cancer that is racism in the U.S. it’s just going pop up in other parts of the body."

There’s an undeniable emotional allure, and even a public mandate, to turn to the courts for accountability for the black boys and girls and men and women whom police kill. "It is the only outlet that’s available right now. It is the only venue we have as a community," says Sheila Bedi, a professor at Northwestern University’s School of Law, describing the bind that black people and their allies are in. "Where else are communities supposed to look for justice?" 

Yet Bedi, herself a practicing civil rights attorney, minces no words about the legal system. "In terms of a social good, the criminal justice system was an accomplice to Michael Brown’s murder."

She, like many, predicted that the grand jury would decline to indict Darren Wilson. In fact, that Wilson would escape indictment was accepted knowledge among those well-acquainted with the workings of the U.S. criminal justice system long before Monday’s announcement came down. "The system is not about justice for black and brown men, as it’s been proven over and over again," Bedi says. 

A ‘Reasonable Fear’ of Black Boys

The matter of whether Wilson’s killing of Michael Brown constituted a crime was never an open question to his family or to protestors who took to the streets in Ferguson. But the legal standard to determine what makes a killing a crime, particularly if a police officer is involved, all but ensured that Wilson would not be indicted. While the Department of Justice has an open investigation into Wilson’s shooting of Brown, media reports have predicted little chance at a federal lawsuit. Should the Brown family choose to file a civil lawsuit against Wilson, the legal bar there will be tough to reach as well, say legal experts.

"The law recognizes that police officers are going to make mistakes, allows for them to do so, and acknowledges that life [may be] the cost," says Katherine Macfarlane, a professor at Louisiana State University’s Paul M. Hebert Law Center who, prior to her appointment, defended New York City and police officers against civil suits, including excessive force claims. Those protections for cops are enshrined in legal doctrines that first allow a police officer to use force–including deadly force–against an apparently unarmed suspect if the officer has probable cause to believe the suspect "poses a significant threat of death or serious physical injury to the officer or others," Supreme Court Justice Byron White wrote in his opinion for the 1985 case Tennessee v. Garner. That case concerned the killing of 15-year-old Edward Garner, a black boy who was unarmed and holding a purse and $10 when a police officer shot and killed him while responding to a report of a nearby home robbery. As it was, the Supreme Court found the police officer’s actions unconstitutional–Tennessee law at the time allowed for an officer to fatally shoot a fleeing suspect in order to secure an arrest. The Supreme Court raised the bar for when force could be an option, but also may have inadvertently supplied every subsequent accused officer the defense they needed to utter in order to be set free: "I feared for my life, or the lives of others."

Indeed, Wilson said a version of this when he sat before the St. Louis grand jury. "[Michael Brown was] obviously bigger than I was and stronger [and] I’ve already taken two to the face I didn’t think I would. The third one could be fatal if he hit me right," Wilson said of his decision to reach for his gun during his interaction with Brown, according to transcripts of the grand jury proceedings published by the New York Times.

Separately, police officers sued for excessive force are to be judged based on a standard of "objective reasonableness," which was set forth by the Supreme Court in its 1989 ruling in Graham v. Connor. Determining whether an act of alleged excessive force violated the law means asking whether another reasonable officer would have acted similarly. If an officer "reasonably" believes they are in danger, they are legally allowed to use deadly force.

"In most police cases there’s deference given to police officers," Macfarlane says. "In excessive force claims in particular the jury doesn’t get to judge the police officer’s actions with the benefit of 20/20 hindsight. A juror will be asked to consider whether an officer acted reasonably under the circumstances, which might include stress and very short timeframes in which to act." 

The objective reasonableness doctrine "is protective of officers and their need to make split-second decisions," says Erwin Chemerinsky, dean of the UC Irvine School of Law. "Excessive force and other legal doctrines make it very hard for those who have been injured to recover."

In a culture where fear of black people, and in particular a fear of black men and boys, is a socially acceptable more, the colorblind legal doctrines nonetheless authorize police officers to shoot and kill black people. Even when those black males are teen boys. Even when they are unarmed. Even when what spooks the police officer is the flash of their partner’s muzzle

If, as in the U.S., white supremacy is the prevailing power structure, and anti-blackness the flip side of that coin, "then the reasonable fear standard will always work against those who are deemed sub-persons," argues Falguni Sheth, a professor of philosophy and political theory at Hampshire College. 

If we wanted to be honest with ourselves, Sheth says, "we have to pull it apart and say: Look, this is the world that is the result of all these horrible histories. The history of slavery, the history of Black Codes, the history of Jim Crow. So the reasonableness standard has to be accompanied by the question: reasonable for whom?"

It could be more aptly described as "a reasonable standard for those who have a fear of blacks and who have arms," Sheth says. 

The 2013 acquittal of George Zimmerman–not an officer himself, but a neighborhood watchman who’d deputized himself as a citizen cop–is a prime example of this, says Macfarlane. "The jury in the Zimmerman case could understand his illogical, subjective fear of a young black man and think of it as reasonable. It seeps into the police force, and every aspect of our culture."

The Real Work

The ability to be wholly unsurprised in and yet simultaneously outraged by the criminal justice system is a recurrent paradox in an era where the arc of the universe is taking its sweet time bending towards justice. 

"Disgusted, full of rage," said activist Patrisse Cullors, describing her state of mind Monday night after a Ferguson grand jury declined to indict Wilson for killing Brown as she expected."[My] heart is broken," added Cullors, the director of the Los Angeles-based police accountability and prison reform group Dignity and Power Now and a co-founder of Black Lives Matter. 

Cullors has organized on police accountability and prison reform issues for years and knows that Brown’s police shooting death will hardly be the last she’ll protest. After all, in the three and a half months between Brown’s August 9 killing and Monday evening’s grand jury announcement, police around the country have killed 25-year-old Ezell Ford, 18-year-old Vonderrit Myers Jr., 12-year-old Tamir Rice and 28-year-old Akai Gurley, all of them black. 

Given the track record–in the last year, grand juries and district attorneys have declined to indict officers who killed 16-year-old Kimani Gray, 22-year-old John Crawford III and 18-year-old Ramarley Graham, all of them also black–Darren Wilson will not be the last police officer to escape criminal charges for killing an unarmed black boy or man. The criminal justice system has proven itself to be disinterested in defending black people’s humanity.

"We cannot indict our way out of white supremacy," Cullors says. And in the coming days, as public pressure likely shifts to calls for a civil rights lawsuit or pressure on the Department of Justice, neither can people "solely call on the DOJ to take action against law enforcement," Cullors says. Change, she says, will come from people who take to the streets to shut cities down. "We must demand for all government officials to sit at the table with us to move towards greater accountability. Every law enforcement agency must be under constant scrutiny by the people they serve and the bosses [who] govern them."

Bandele of MXGM agrees. She says the group will continue to train people in other cities to conduct their long-running police observation program, and to fight for legislation like the anti-racial profiling policy community groups won last year in New York City. "When things happen like Amadou Diallo, like Sean Bell, you would think people would give up," Bandele says, letting out a short laugh at the absurdity of the political reality. "But we know you can’t give up. There’s no option. We can’t live like this. We can’t live and have people shot in our community."

She isn’t ready to give up on a political strategy that includes going after cops in court either. "No one is saying [the courts] are the only field you can play in to get justice," Bandele says. "We are at such a crisis level that we have to double down on whatever we have available to us. We’ve got to play them all."