Policing the police
Justice is the crowning glory of the virtues. – Marcus Tullius Cicero
Police brutality is a complex and multifaceted problem. To solve it will require a full magazine of measures, not just a silver bullet in the chamber.
One such facet is the topic of a recent article in Psychology Today regarding male police recruits. Police officers are more likely to operate in higher order psychopathic dimensions that include Self-centered Impulsivity, Cold-heartedness, and Fearless Dominance. Self-centered Impulsivity is associated with impulsiveness, aggressiveness, and egocentricity. Cold-heartedness is related to the inability to experience important social emotions like love or remorse. Fearless Dominance, on the other hand, has been implicated in socially adaptive behaviors such as acts of heroism. The authors of the study note, “Hallmarks of the law enforcement profession, such as heroism, risk-taking, and authority/power…make it conceivable that certain psychopathic traits predispose individuals” to consider joining the police force. These traits may be laudable when police do their job of “serving and protecting,” but can be horrific when dominance and cold-heartedness prevail in police encounters with the citizenry.
We have seen this phenomenon play out in dozens of cities throughout the country even after the murder of George Floyd. The New York Times reported a few days ago on cellphone videos showing New York City police officers beating unarmed protesters and sideswiping demonstrators with opened squad car doors. Others around the country show the police indiscriminately using pepper spray on protesters or pedestrians. On live television, police officers in Louisville, Ky., fired pepper-spray balls at journalists. Innocent people have been shot in the face and head with rubber bullets, leaving them bloodied and seriously injured. An Australian news crew was attacked without provocation and struck with batons and shields. In Buffalo, a video from WBFO, the local National Public Radio station, on Thursday showed police officers in riot gear shoving a 75-year-old man to the ground and walking away as he lay unconscious on the sidewalk, blood coming out of his ear. As of the morning of June 5, 2020, a compilation of videotapes showing similar abuses and posted on Twitter by a North Carolina lawyer includes more than 300 clips.
Political paralysis is another part of the problem. In fact, despite widespread protests and various efforts to reform police departments since a spate of killings by police in 2015, nothing much has changed in the United States. That year, “The Washington Post began tallying how many people were shot and killed by police. By the end of 2015, officers had fatally shot nearly 1,000 people, twice as many as ever documented in one year by the federal government … The next year, however, police nationwide again shot and killed nearly 1,000 people. Then they fatally shot about the same number in 2017 — and have done so for every year after that, according to The Post’s ongoing count. Since 2015, police have shot and killed 5,400 people” of all races.
In the United States, security forces kill people at a higher rate (46.6 percent per 10 million population) than most other countries, including Colombia, Egypt, Iran, Iraq, Mexico, and Pakistan, to name only a few. This makes the United States the 11th most deadly country out of the worst 51. As reported by The Guardian, in the first 24 days of 2015, police in the United States fatally shot more people than police did in England and Wales, combined, over the previous 24 years.
What is disturbing is not only the number of killings overall, but the racial disparity of the killings and the circumstances in which they occur, reflecting widespread racism in the United States. According to a recent report from Statista, “in 2019 data of all police killings in the country compiled by Mapping Police Violence, black Americans were nearly three times more likely to die from police than white Americans. Other statistics showed that black Americans were nearly one-and-a-half times more likely to be unarmed before their death.”
An opinion piece in the Absurd America section of the Washington Post lists a number of examples of how blacks risk murder by the police, often during mundane encounters. These include: selling cigarettes (Eric Garner, New York City); playing at a park (Tamir Rice, 12, Cleveland); in a traffic stop (Walter Scott, North Charleston, S.C.); even if already arrested (Freddie Carlos Gray Jr., Baltimore); failing to signal a turn (Sandra Bland, Prairie View, Tex.); during a car break down (Corey Jones, Palm Beach Gardens, Fla.), to name only a few of the most recent.
What happens after these killings is equally disturbing. First, the police typically lie or try to hide the facts. If there are videos showing the events, they will insist that there is other evidence or other scenes not shown in the videos that justify the killings. The police unions or fraternal orders of police will step in and make outrageous claims that insult the intelligence of any objective observer. If there is an investigation of the events, it will typically be conducted by the Internal Affairs department of the same police force or other agencies that lack subpoena power and other resources. Even if none of this works to shield the attackers, prosecutors will often refuse to indict culpable officers. If they do indict them, the charges will be lesser than what they deserve. Finally, if the cases go to trial, juries will be hesitant to convict either because they believe the police more than other witness testimony and other evidence, or because the laws are stacked in favor of the police. Undoubtedly, jurors are influenced by the overwhelmingly positive portrayal of police officers in dramatic series like Brooklyn Nine-Nine and Law and Order and reality-TV shows that glorify police bullying like Cops. Police end up being unaccountable to anyone, effectively given a license to kill.
Legal history is another factor contributing to the problem, since The Supreme Court of the United States has retarded the evolution of a more perfect and just union in this area. As the distinguished legal scholar David H. Gans explained recently in Slate, the court uses an open-ended test, ignoring the history of the 14th Amendment, that defers to the police in criminal cases and enables systemic police brutality directed at communities of color.
The authors of the 14th Amendment, Gans writes, drafted a report that “detailed the need for universal guarantees of liberty and equality [and] laid out, often in gruesome detail, how white police officers were engaged in a campaign of unending violence against black people. Police beat and killed black Americans while turning a blind eye to crimes committed against them. The 14th Amendment was designed to put an end to such police violence and killings. It vindicated the demands of black Americans that ‘now that we are free we do not want to be hunted,’ we want to be ‘treated like human beings.’ Recently emancipated slaves could not take their place as equal citizens in our nation if police officers were free to brutalize them.”
In the 1989 case of Graham v. Connor, however, the Supreme Court ignored the 14th Amendment and decided that claims of excessive force must ask whether police officers’ use of force was reasonable under the circumstances, applying 4th Amendment substantive due process principles that frame excessive force as an isolated interaction between police and individuals. The court practically immunized the police by ruling that reasonableness must be judged from “the perspective of a reasonable officer on the scene” and courts must account for the fact that “police officers are often forced to make split-second judgments … about the amount of force that is necessary in a particular situation.” These weasel standards make it very difficult to prove beyond a reasonable doubt that a killing is unjustified, especially when federal courts often reference or defer to police departments’ use-of-force policies as the appropriate legal interpretation of “reasonable.” The standard needs to be changed to the perspective of a reasonable person and declare that lethal force is justified only as a last resort and when clearly necessary.
An opinion piece in The Atlantic concludes, that “the ongoing epidemic of police violence is not simply the result of what former Attorney General Jeff Sessions once described as ‘individuals within a department that have done wrong.’ Instead, by allowing police to largely define what constitutes excessive force, the Court has limited its own judicial oversight of the system, creating the conditions that allow police to use violence with impunity. As a result, the individual bias often found among police officers can quickly translate into violence against minority communities.” The issue is not a matter, therefore, of a few bad apples, it is the result of “systemic judicial failings.”
On the civil law side, the Supreme Court has made matters even worse by rewriting Section 1983, a Reconstruction-era law designed to enforce the 14th Amendment. The court changed the law to protect police officers from being sued, even when they engage in brutal conduct. Under the judge-made doctrine of “qualified immunity,” police victims must prove that the officers violated “clearly established” law. This means that one can’t win a case against a police officer for violating one’s constitutional rights unless there is a prior case closely on point. And because the excessive force standard is so vague and fact-dependent, qualified immunity makes it incredibly difficult to hold police officers accountable for police brutality, as a recent Reuters report showed and which advocates on both the right and the left have decried. Under the court’s reasoning, hardly any case can succeed because there can never be a first case if it requires a previous case on point.
In 2015, for example, the court held in Mullenix v. Luna that an officer who fired his rifle six times in the dark at a vehicle traveling 85 mph towards spike strips couldn’t be sued because it was not “clearly established” that his actions violated the Constitution’s prohibition on unreasonable force. In another case last month, following the Supreme Court’s guidance, the Tenth Circuit Court of Appeals heard a case where officers tased and killed an unarmed hospital patient, who was sick with pneumonia and refused to return to his room because he was confused. The court held that the officer did not violate clearly established law because no prior cases had presented similar enough facts. Expanding on this absurdity, because it did not succeed, this case cannot be cited as a prior case on point when similar cases arise.
The circumstances in Mullenix were very similar to George Floyd’s more recent killing. As reported by Reuters, the officers, after shooting the patient with a stun gun, followed him down a corridor, shocked him again, and wrestled him to the floor. One officer then straddled his back, trying to handcuff him as the others struggled to pull back his arms. The man went limp and the officers stepped back. Hospital staff dropped to his side and began a futile effort to resuscitate him. The Oklahoma Chief Medical Examiner’s Office, however determined that the man, his lungs already compromised by pneumonia, was starved for oxygen in his struggle with the police and died from “respiratory insufficiency.” The county sheriff and the city police chief defended the officers’ actions as appropriate to the situation. The cops were not charged with any wrongdoing.
The good news is that the issue of police brutality has reached the boiling point and there are many different proposals to turn the police into an instrument of justice instead of injustice. They include measures to defund the police, or to remove responsibilities from them that they shouldn’t have and are not trained to handle, to use experts on defusing tense situations, to divert funds for community programs designed to reduce crime and improve education, to reduce the power and corrupting influence of police unions and fraternal orders of police, to create self-policing community organizations, to enact laws abolishing qualified privilege or imposing a more practical standard of liability for wrongdoing by police officers, to establish more civilian review boards, and many more.
These are all good. I believe, however, that it should all start with addressing how the same qualities required of a courageous police officer may lead to abuses. Police cadets need to be better screened to eliminate those who are motivated by a desire to bully, dominate, and maybe even kill. They should be able to show courage instead of trigger-happy and disproportionate reactions. They should be paid well enough so that we can attract more qualified, balanced individuals. (Some might be surprised to learn of the relatively low salaries policemen are paid). And legislative changes are needed concerning the standard to justify the use of force, to eliminate chokeholds and the like, and to make it easier to fire and remove the licenses of those who show abusive tendencies. We should aim to have the police behaving less like savage tyrants and more like partners and friends.
Amaury Cruz is a writer, lawyer, and political activist from Miami Beach. He has a bachelor’s degree in political science and a Juris Doctor.