The Police, the Law, and the Unjustified Use of Force

Image from a December 4, 2014 protest against a New York grand jury decision not to indict Daniel Pantaleo, the New York Police officer who killed Eric Garner; courtesy a creative commons license. Original photo available here.

Image from a December 4, 2014 protest against a New York grand jury decision not to indict Daniel Pantaleo, the New York Police officer who killed Eric Garner; courtesy a creative commons license. Original photo available here.

In recent months, the nation has witnessed several killings of African-American individuals by White police officers and a White security guard. These include the recent killings of Oscar Grant in California, Trayvon Martin in Florida, Eric Garner in New York, Michael Brown in Missouri, and Tamir Rice in Ohio. In each case, the established criminal justice process failed to evidence a serious intent to prosecute the offending officers, sparking vocal nationwide protests. Had civilians committed the same acts as these officers, they would have been prosecuted for a criminal offense.

In most cases, the protests that arose after these deaths were immediate, in large part because many African Americans and people of color have seen close family members or friends become the victims of police misconduct. Indeed, misconduct is an issue of epic proportions in minority communities. In the vast majority of these cases, law enforcement and prosecutorial officials have failed or simply refused to pursue criminal charges against the offending police officers. In those few cases where prosecutors have brought criminal charges, district attorneys have not vigorously pursued the cases and they have generally not produced guilty verdicts.

This failure of justice is not a recent issue. I vividly recall the shooting death of my 17-year-old cousin in LaGrange, N.C., when I was seven years old. My cousin Bobby Joyner was murdered by a White police officer on a Wednesday night as he walked home from choir rehearsal. He was shot in the driveway of the all-White high school, where he bled to death. After he died, his body was dragged across the street and placed under the bedroom window of a White woman’s home; the window screen was slit with a knife in an attempt to make it appear that Bobby was breaking into her home. An African-American garbage collector was awakened from his home and directed to cover the puddle of blood in the school driveway with dirt. As soon as the sun rose the next morning, family members took pictures of the murder scene, which clearly showed the covered-up blood puddle and visible tracks where the body had been dragged through the dirt and grass and placed under the window of the house.

In 1952, there were no federal laws to protect African Americans or enable prosecutions against White police officers. In those days, during Jim Crow, you could not expect White police departments to arrest or charge any White person for crimes against African Americans. Nor could you expect a White prosecutor to prosecute a White person for committing a crime against an African American. The law, then and now, grants prosecutors complete authority to determine who will be prosecuted, and no one can interfere with that power. It is also important to remember that in 1952, there were very few African-American police officers, and perhaps no African-American prosecutors, anywhere in this country.

Therefore, despite the best efforts of my grandfather and other town leaders, their organized campaign to obtain an investigation was ignored. Instead, they immediately became the target of police intimidation and harassment. Their experience illustrated the stubborn reality, almost 100 years after Dred Scott v. Sanderford, that African Americans had no legal rights that White governmental officials were required to respect or acknowledge.

In 2015, a time when there are civil rights laws on the books and many police departments and prosecutors’ offices are racially integrated, you would not expect the responses to police killings of African Americans to meet the same fate as in 1952. But the failure to investigate is the same today as it was then—except now it is a national problem.

The simple explanation for this problem is that this nation’s laws are deliberately designed to protect police officers from prosecution for misconduct. This protection has served to embolden police officers in contact or confrontations with African Americans and other minorities.

An examination of North Carolina law shows why there are very few prosecutions. North Carolina’s laws are no isolated phenomenon—the vast majority of states rely on a similar scheme. With respect to the officer authorization to use force, most State laws simply say that police officers are privileged to use force against civilians. Under the North Carolina statute, a police officer is justified in using physical force upon a person when, and to the extent that, the officer reasonably believes it necessary to prevent the escape or make the arrest of a person who the officer reasonably believes has committed a criminal offense. In addition, the officer is justified in using force to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while making an arrest.

The basic notion is that the officer is authorized to use force when in the officer’s judgment, he reasonably believes that the force used is necessary to effect an arrest or to discharge an authorized duty. This subjective standard differs from an objective standard where the officer’s conduct is measured against what a reasonable, well-trained police officer, acting appropriately, would have done under similar circumstances. Pursuant to this subjective standard, when the officer believes that he or a third person is in danger of harm, he can, under the law, use any amount of force which that officer believes is necessary to overcome the danger or harm threatened. In determining the amount of force to be used, the officer may consider all of the surrounding circumstances, including the nature of the perceived offense, the person’s reputation, the words or actions used by the person and whether he is armed or suspected of being armed.

Where a police officer uses fatal force, the controlling statutory standard is similar. A police officer is justified in using deadly or fatal force when it appears to the officer to be reasonably necessary to defend himself or a third person from what the officer reasonably believes to be the use or imminent use of deadly physical force. In addition, the officer can use fatal force to effect an arrest or prevent the escape of a person who the officer reasonably believes is attempting to escape by the use of a deadly weapon, or to prevent the escape of a person from custody imposed upon him as a result of a felony conviction. In the landmark case of Tennessee v. Garner, the United States Supreme Court declared it unconstitutional for a police officer to use fatal force for the sole purpose of apprehending a person suspected of committing a crime. However, that Court did affirm an officer’s use of fatal force if it was necessary to prevent an escape where the suspect posed a significant threat of death or serious bodily injury to the officer or to a third person.

These statutory authorizations place the officer on an elevated scale of protection from prosecution that civilians do not enjoy. Officers are trained to understand how much authority they have, and they understand that courts are going to extend the benefit of the doubt to them unless an officer has abused his authority. The authorization for an officer to use reasonable force to complete an arrest is not intended to serve as a justification for willful, malicious, or criminally negligent conduct; nor does it authorize the officer’s use of “excessive” force. Yet, in practice, it has been used to justify police killings. The mere fact that a person has committed a crime — or appears to the officer to have committed a crime — does not authorize a police officer to kill him. Even when the person resists arrest, this does not automatically justify an officer’s use of fatal force, since resisting does not always involve physical threats and assaultive conduct. Clearly, the fact that the person is an African American or another racial minority member does not justify an officer’s decision to kill that individual. The critical test is whether the person is engaged in actual conduct, at that moment, which places the officer or a third person in imminent danger of serious bodily injury or death. This determination is based upon the “totality of the circumstances,” which always focuses on exactly what the person is doing to endanger the personal safety of the officer or a third party.

Many people are under the mistaken impression that a person must willingly and immediately submit to police authority whenever the police officer makes contact with them. As a matter of law, unless a police officer has obtained a reasonable suspicion to detain a person or probable cause to arrest a person, no lawful authority can be asserted over any individual. In the absence of reasonable suspicion or probable cause to believe that the person is engaged in criminal conduct, a police officer has no legal authority to interfere with a person’s movements.

This lawful expectation leaves room for any person to dissent or resist police conduct directed toward them. Although it is not the case in most states, in North Carolina, a person has the authority to resist an unlawful arrest. However, even in North Carolina, an individual never knows when an illegal arrest is occurring and acts at their peril in choosing to resist an arrest. Individuals are expected to raise all legal challenges to an arrest or an officer’s use of force in court. However, this assumes the individual is alive to make it to court and is represented by an attorney who can gather witnesses to provide factual information that supports the challenge.

The laws regarding the use of force do not favor civilians over police officers. Police officers abuse their legal authorization to the use of force, which aligns with an aggressive, militarist policing culture and style that is deliberately designed to deter individual resistance. These aggressive practices demonstrate forceful conduct in order to convince civilians that they should not resist the police. Often times, officers will even engage in “swarm” tactics where they use as many officers and weapons as possible to convince people that they are overpowered or can be overpowered. Consequently, individuals are pushed out of positions where they can observe what is occurring or are prevented from recording the events. Using this strategy, police officers are able to isolate individuals who have been targeted for a police operation from others who might serve as eyewitnesses or who could lodge an on-the-spot protest of inappropriate conduct.

Where a police officer uses any degree of force, fatal or non-fatal, against an individual, it is not necessary that the person was actually armed, dangerous or presently engaged in the commission of a crime in order to justify the officer’s conduct. The United States Supreme Court has determined that a reasonable belief by the officer that force was necessary, even if based on a mistake of fact or of the applicable law, is sufficient to satisfy the constitution. Based on the North Carolina statute, as long as the officer himself reasonably believed that the person posed a threat or danger of serious bodily injury or death, he would be justified in using fatal force.

Moreover, prosecutors, who work closely with individual officers, are not inclined to prosecute police officers for their aggressive use of power. Moreover, a prosecutor’s decision not to prosecute cannot be reviewed or reversed by anyone. At the next election, voters can vote in a new prosecutor, but there is no legal authority that can compel a prosecutor to pursue criminal charges against a police officer. On the other hand, if the prosecutor decides to prosecute an officer, a grand jury must also affirm that decision. To further compound this lack of oversight, there is no independent or meaningful complaint process or redress apparatus within local police departments. In fact, the filing of a misconduct complaint with the Internal Review Unit usually will intensify the complaining party’s persecution and harassment.

Finally, the courts have created a “qualified immunity” status for police officers. With “qualified immunity,” the law protects an officer against civil rights claims, except in those very rare cases where the particular conduct committed by the officer violates clearly established law. If those particular facts or law have not been previously found to be illegal through some judicial adjudication, the officer is protected from a civil rights lawsuit even being filed. Under “qualified immunity,” most legal challenges never go to trial and escape an adjudication based upon the legal merits. By the same token, prosecutors enjoy “absolute immunity” from a civil rights claim for the refusal to investigate a police misconduct claim or to prosecute the offending police officer. Even where a legal claim against a police officer survives the “qualified immunity” barrier and is allowed to go to trial, it can take years and huge amounts of money before a final verdict is rendered.

In order to deal with police misconduct, it is necessary to make fundamental changes to the laws, authority, and procedures which presently protect police officers and enable them to use indiscriminate physical force against individuals. Anything short of a comprehensive change of the laws regularly used to justify the unjustified killings of African Americans and other racial minorities will achieve no more than spitting in the wind. As such, efforts to alter and bring about fundamental change of the police culture and its use of force will continue to frustrate people.

As a beginning proposition, fundamental changes should include:

  1. A change in the legal standard that authorizes the use of force—from the police officer’s subjective judgment to that of an objective, reasonably well-trained officer;

  2. The creation of an independent civilian review board that has the ability to review all police misconduct, has subpoena power, is staffed by trained professionals and can administer discipline for police misconduct and improper training;

  3. The provision of authority for the state attorney general to appoint a special prosecutor to investigate and prosecute wrongful death claims;

  4. Requirements that police officers reside in the cities or towns where they are employed;

  5. Requirements of written permission for police officers to search a person’s residence or automobile where a search warrant has not been previously issued;

  6. Requirements of the use of car and body cameras while officers interact with individuals, and of discipline for those officers who fail to use these devices;

  7. Requirements of psychological examinations for all officers, bi-annual re-evaluations, and the administration of mental assessments after an officer has been involved in a fatal force incident;

  8. Requirements that all officers and administrators to successfully participate in ongoing racial sensitivity and conflict resolution training every five years, more often if needed;

  9. An insistence that police departments become more racially and culturally diverse across each administrative level;

  10. A re-examination of the question of who controls the police, and placement of the police under the authority of a citizen commission.

The reforms listed above represent a mere starting point and should not be viewed as exhaustive. It is important to understand that modern-day police authority and the use of force have no constitutional origin or justifications. Rather, they has been created by statutes and endure only by public consensus. As presently used, the powers of the police have grown to the extent that they dwarf the constitutional rights and protections which citizens enjoy. As such, the legal limits of this authority should be re-examined.