It’s Not Just Bad Cops, It’s the System


By Joseph Orosco (July 7, 2016)

The criminal justice system that is. In the aftermath of the killings of Alton Sterling and Philando Castile, there are calls for widespread police reform, ranging from mandatory body cameras, better training to the establishment of civilian oversight committees and the election of pro-reform officials.

It’s not clear that these reforms that focus on police force reform will do much good to stem the tide of the killing of people of color. Part of the reason is that police operate within a criminal justice system that has given them wide lattitude to use deadly force. This is why, even when cops are indicted for the use of excessive force, they usually go free. In fact, the US Justice Department study in 2002 found that about only 8% of complaints of police brutality are ever upheld.

Since 1989, the US Supreme Court (SCOTUS) has held, in the case of Graham v Connor, that the use of deadly force by police officers has to be judged by whether it was “objectively reasonable” in that particular circumstance. The Graham test for whether force is reasonable, according to SCOTUS, has to be based on the police officer’s perception at the time. In other words, an officer may use deadly force if they reasonably believed at the moment of use that they or others were in imminent danger, regardless of whether such danger in fact existed. Indeed, the court said it doesn’t matter if its determined with “20/20 hindsight” that no one was really in harm’s way—all that matters is what the police officer reasonably perceived to be the case.

This leeway is the reason why officer Darren Wilson was not brought up on charges for the murder of Michael Brown in Ferguson, Missouri. The law in Missouri, Section 563.046 “Law Enforcement Officer’s Use of Force in Making an Arrest” creates a shield against prosecution based on this standard. It holds that the use of deadly force is justified if the officer: “reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested (a) has committed or attempted to commit a felony; or (b) is attempting to escape by use of a deadly weapon; or (c) may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

It is into the space of this legal leeway that all sorts of problematic racial prejudices can enter. Was Darren Wilson’s perception of the threat posed by Michael Brown “reasonable”? In his testimony to the grand jury, Wilson said that he felt severely overpowered and in terror of Mike Brown: “When I grabbed him, the only way I can describe it is I felt like a five year old holding onto Hulk Hogan.” After he shot Brown the first time, Wilson said that Brown “looked up at me had the most intense aggressive face. The only way I can describe it, it looks like a demon, that’s how angry he looked.” Wilson continued to shoot and remembers: “At this point, it looked like he was bulking up to run through the shots, like it was making him mad that I’m shooting at him…And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.”

What is most striking about Wilson’s testimony is that his characterization of Brown as a threatening superhman animal with extraordinary strength and resilliance is not a peculiar quirk of his. Researchers at Northwestern University have found that many white American have an implicit racial bias against African Americans which the researchers call “superhumanization bias”. Whites are more likely to associate African Americans with mythical creatures and they are more likely to assume that African Americans do not experience as much pain as white people. In other words, the story of Blacks as beings endowed with magical abilities and supernatural powers is a common, unconscious framework operating in the minds of many white Americans. This framework conditions how white Americans understand the forces at work in the world, what is true in it, and what to expect from their interaction with African Americans. It’s not surprising then that Wilson might “reasonably” believe at the very moment of his encounter with Mike Brown that he was confronting something that he was not equipped to deal with except through the use of deadly force. And the law protects him in doing so.

And while it is difficult to criminally prosecute police officers for the use of unreasonable deadly force, it is also almost impossible to gain a civil remedy. In the case of Plumhoff v. Rickard (2014), SCOTUS ruled that police officers cannot be sued for excessive force or killing someone if they did so under the reasonable belief that force was necessary.

So when people defend police officers by saying that we cannot judge whether or not the use of force was justified because “we weren’t there” and don’t know what split second decision the cops might have had, they are actually voicing the current legal standards for judging police brutality. But hopefully we can see that those standards allow for some very heinuous racial biases to enter into the definition of a reasonable assessment of reality.

It’s clear that the problem of extrajudicial execution of people of color won’t be tackled merely by reforming police training or even strong community oversight boards (though these might help a little). It must involve significant legal overhaul and cultural intervention into the foundations of white supremacist worldviews, as well. Maybe it will also get us to consider whether or not we need police forces to keep us safe at all.

3 thoughts on “It’s Not Just Bad Cops, It’s the System”

  1. Joe,

    This is very well stated, yet I am very distressed concerning the how’s and when of radical overhaul. I’m wondering exactly how much more communities of color can take. All of my black friends have been significantly impacted – especially over the last two days. It seems to me that some sort of mass event with potentially catastrophic consequences may precede any large scale systemic overhaul.

  2. I’m pretty certain you’re not a lawyer because whatever the USSC said in ‘Graham,’ you’ve garbled it. Objectively reasonable is the antithesis of a cop’s subjective belief. It’s one or the other and not both.

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