Beyond the racial prejudice of juries and district attorneys, a major—and frequently ignored—factor as to why county prosecutors fail to indict cops who maim or kill unarmed citizens is a handful of Supreme Court and federal cases that exalt police discretion over common sense.
The key question at the center of these excessive force cases is “reasonableness”—not what is reasonable to you and me, but to a police officer. Writing on behalf of the court in Graham v. Connor, a landmark case regarding police violence, Chief Justice William Rehnquist wrote, “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight.” The court went even further by couching the officer’s reasonableness in the likely context of “split-second judgments” and “in circumstances that are tense, uncertain, and rapidly evolving.” The preemptive apologism of this language provides police with a wide breadth for mistakes or misconduct—and the public with little guarantee of even application. It fortifies the absurd idea that the hastiest of police actions is not only justifiable, it is eminently reasonable.
Dethorne Graham, a North Carolinian transportation worker and diabetic, brought the case to the Supreme Court. One afternoon in 1984, Graham was feeling the onset of a bad insulin reaction from low blood sugar. Graham called a friend, William Berry, for a ride to the convenience store to get some orange juice. Graham went into the store while Berry waited in the car. There was a long line at the check-out counter so Graham quickly decided to look elsewhere. Rushing out, Graham got back in Berry’s car. What police officer Connor, parked across the street, saw was Graham hurry into the store, run out, and then jump into his friend’s car; moves considered “textbook” for a thief.
Connor followed Berry’s car and pulled the men over. Berry explained that his friend was diabetic and they needed to get some sugar in him fast. Connor was unconvinced and told the two men to wait while he found out what happened at the convenience store. At this point, Graham got out of the car, ran around the car twice, and then sat on the curb and passed out. Faced with an unconscious Graham and Berry, explaining they were just trying to get some juice, Connor called for backup.
Officers cuffed the half-conscious Graham, and placed him face down on the hood of Berry’s car. Regaining awareness, Graham told the officers to check his wallet for the diabetic decal card he carried. One of the backup officers told him to “shut up” and shoved his face down onto the hood. A friend of Graham’s brought some juice to the scene but the officers refused to let him have it. When the officers finally got the report back from the convenience store that nothing was amiss, they let Graham go. By the end of the ordeal, Graham had suffered a broken foot, cuts on his wrist, an injured shoulder, and a bruised head.
Graham sued the officers for “maliciously and sadistically” using excessive force; a lower court ruled that Graham’s rights were not violated because the officers were acting in “good faith.” The “good faith” test was established in a federal case, Johnson v. Glick, regarding excessive force of prison guards, which found that, “In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of the force that used, the extent of the injury inflicted, and whether the force was applied in a good faith effort to maintain or restore discipline or maliciously or sadistically for the very purpose of causing harm.”
Graham v. Connor is why so many suspects end up getting shot in the back, which when looked at objectively is a pretty clear example of excessive force.
Graham petitioned the Supreme Court to review the case. The Supreme Court ruled that it was Graham’s Fourth Amendment rights that were at issue, and held that the test of an officer’s reasonableness needed to be balanced against a citizen’s right to be secure from unreasonable search and seizure, establishing a three-pronged test to merit use of force. Now, police training includes a drilling about the importance of weighing up “the severity of the crime at issue”; “whether the suspect poses an immediate threat to the safety of the officers or others”; and “whether he is actively resisting arrest or attempting to evade arrest by flight.”
In an article published in Police magazine (in the “Patrol” section) on the use of excessive force in the aftermath of Ferguson, Mark Clark, a twenty-seven-year veteran, writes, “Officers working the street and applying the principles of Graham v. Connor every day may or may not know they are doing it. A generation of officers has been trained in the case’s practical meaning and has spent decades applying it to every use-of-force decision. So it has become part of law enforcement DNA, often unnoticed as it works in the background to determine our actions.”
This is why so many use-of-force reports filled out by police officers include allegations that a suspect was resisting arrest. It’s also why so many suspects end up getting shot in the back (which when looked at objectively is a pretty clear example of excessive force: someone whose back is to you is typically not a direct physical threat unless they are about to toss a hand grenade over their shoulder), in their attempt to flee a scene. Under the Graham decision it is not unreasonable to use force—be that a Taser or a bullet—if the defendant is making an escape and is considered by the officer to be a potential threat to the safety of the community.
And while the first prong of the test holds that a reasonable officer should consider the “severity of the crime” when using force against a suspect, it’s clear given the tragic deaths of Michael Brown (suspected of shoplifting and jay walking) and Eric Garner (suspected of illegally selling cigarettes), the established threshold for severity is extremely low.
The Graham test, put into effect in 1989, led directly to the leniency shown to the Los Angeles police officers who brutally clubbed Rodney King after a high speed chase in 1991. Of the group of four officers who brutally clubbed King, delivering roughly fifty baton blows to his back, legs, head, and face, while a half dozen more cops looked on, two of the officers involved were acquitted, whereas Officers Stacey Koon and Laurence Powell were given short prison sentences because they proceeded to kick and strike King another five or six times after he had submitted to officer demands. Nevertheless, a federal judge noted that the use of a Taser on King and the initial barrage of baton strikes against his body were not criminally excessive. Applying the Graham test of reasonability, District Court Judge John G. Davies, blamed King for the volatility of the arrest scene, adding that, “Sergeant Koon may reasonably have suspected that Mr. King was under the influence of PCP because of Mr. King’s erratic and recalcitrant behavior.”
Are jurors often racist? Certainly. Do many prosecutors protect their own political interests instead of pursuing justice? Yes. Did the race of the plaintiffs in these high court cases influence their outcome? Likely. However, when there is a prosecutor who is willing to try police misconduct cases—barring the most extreme cases of misconduct—that prosecutor is playing in a rigged game with a long shot of success.