Mimesis Law
17 October 2017

The Law of Police Killings: Whenever They Feel Like It

Aug. 31, 2015 (Mimesis Law) — Begin with F. Scott Fitzgerald from The Crack-Up (1936):

The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.

Then go back 99 years and cross the pond. Dickens, in Oliver Twist, has Mr. Brownlow tell Mr. Bumble:

[T]he law supposes that your wife acts under your direction.”

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass – a idiot”.

Fast forward to 1989 and cross the Atlantic again. Chief Justice Rehnquist, writing for the U.S. Supreme Court in Graham v. Connor about how to measure when a police officer’s use of force is constitutionally excessive. Begin with the plot. (Yes, I know, I didn’t give the plots of Oliver Twist or The Crack-Up; they’re not relevant, this one is.)

Dethorne Graham is diabetic and was having an insulin reaction. He had a friend drive him to a convenience store to buy some OJ which would help to resolve the problem. But the store was crowded, and the line was long. Graham ran back out, jumped in the car, and asked to be driven to a friend’s where, one assumes, he could get some juice ASAP.

Connor, a cop, saw Graham run into the store and then back out. His spidey sense told him that Graham must have just committed an armed robbery, so he jumped into his car and chased them. After a half mile or so, he stopped the car. When Graham said he was having a “sugar reaction,” Connor called for backup. Graham got out of the car and passed out.

Other cops arrived and, recognizing the danger they faced from a guy passed out on the berm, cuffed him with his hands behind his back. Graham said he was diabetic and asked for sugar. The cops, as expert diagnosticians, decided that he was drunk, so they decided to lock him up. He asked them to look in his wallet where he had a diabetes ID. They told him to shut up and slammed his face into the hood of the squad car. Then tossed him, head first, into the back seat. Graham’s friend brought over some OJ for him. The cops wouldn’t let him have it.

Around then, word came back from the convenience store that Graham hadn’t done anything. The cops then drove him home. By then, Graham had “a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder.” Oh, and “loud ringing in his right ear.” He sued.

The trial court concluded that the cops used an appropriate amount of force to subdue an unconscious guy who’d done nothing wrong. The court of appeals, 2-1, agreed since he didn’t prove that the cops acted “maliciously and sadistically for the very purpose of causing harm.”

And so to the 9 robed ones on Front Street in D.C. who all agreed that the court of appeals was wrong and should reconsider. But how? Which is where Rehnquist came in, writing the court’s opinion which proved Dickens and channeled Fitzgerald.

The test for whether the use of force is reasonableness, he said. And that’s measured objectively.

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

Which is straightforward enough, if not particularly helpful. So you look at all the facts and circumstances. And then? Pluck the answer out of your ass because who’s to say what is or isn’t reasonable under the circumstances.

Consider the case. If it was Graham’s call – well, you know what he thinks. He’s the guy who sued the cops. But if it’s the cops’ call?

Well, they chose to hold him, cuff him and refuse to look at the proof of his claim of diabetes he offered them, and decided instead to smash his face into the hood of the cruiser. And then they denied him the OJ he needed. They chose to do those things, so they must have seemed like the right thing to them. Reasonable? Yeah, they’d think so.

But the test is objective, so there’s a correct answer that any observer would know. (Graham wins.) Except, the test is also (you might want to sit down for this) subjective.

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.

So, to be clear, it’s an objective test that’s altogether subjective.

It’s also a test that explains why cops are free to shoot whoever they want. The only question is whether the shooting was reasonable. Whether it was reasonable is determined from the point of view of the cop who did the shooting. He thought it was. That’s all there is to it.

The alternative, of course, is to abandon the absurd notion that anything subjectively reasonable to the police is objectively reasonable and therefore acceptable. That’s not to say that the purported victim gets to decide, either. Graham’s views are as unreliable as Connor’s.

Megan McArdle at Bloomberg suggests the problem is intractable. Writing about the hopelessness of the Black Lives Matter 10-point agenda –

Fundamentally, they’re trying to answer a problem that has perplexed society for a long time: How do we send police out to control crime (which, we should remember, disproportionately affects minorities and the poor), while holding them accountable for not misusing the considerable power we’ve vested in them? It’s a life-and-death version of a broader question economists and business-school types have wrestled with: How do you manage professionals? Unfortunately, so far no one has come up with great answers.

The difficulty, she says, is that if police oversee themselves, they’ll always take their side. But if they’re policed by civilians, their side will be ignored and they’ll be unhappy and take it out on the rest of us by doing a lousy job.

If you constitute such a body, you are asking for open conflict with your police force, which will justifiably resent being told that they did their jobs wrong, all the more so if the charge is coming from people who have never tried to do the job. Because police officers spend a lot of time operating unsupervised, and do not have measurable outputs other than the time they put in, they will have a lot of ways to rebel against perceived unfairness.

It’s a curious problem. Either treat the cops as professionals capable of policing themselves, in which case they’ll run rampant. Or treat the cops the way everyone else is treated in which case they’ll turn their backs on the public they’re ostensibly supposed to protect and serve.

So, she concludes, there’s essentially nothing to be done except around the margins.

At the end of the day, we still have to send police officers out to deal with our society’s most desperate moments. We have to give police considerable powers to do this, and those powers are inherently susceptible to abuse. We can curtail the worst of the abuses, demand more oversight, give them more guidelines. We can second guess the decisions, and punish the bad ones. But police are professionals: They’ll always be the ones making the life-and-death decisions that count.

Which is, of course, true. As long as we don’t actually hold the police accountable.

If we want the police to be accountable, we have to make them. That means subject their conduct to objective evaluation in the courts, by juries, who aren’t told that the officer’s imagination is to be believed because they can shoot any time they imagine a threat. And if they turn on us. If they refuse to do their jobs, if they look the other way or choose Krispy Kreme over responding to 9-1-1 calls, then fire their asses.

What Fitzgerald demands of the first-rate mind simply doesn’t work in the streets. And Mr. Bumble is, alas, absolutely right about the law.

11 Comments on this post.

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  • Keith
    31 August 2015 at 9:44 am - Reply

    Thanks for the explanation.

    It’s a curious problem. Either treat the cops as professionals capable of policing themselves, in which case they’ll run rampant. Or treat the cops the way everyone else is treated in which case they’ll turn their backs on the public they’re ostensibly supposed to protect and serve.

    This seems to presuppose (perhaps correctly) that there’s no middle ground and that the public is incapable of accepting a certain amount of crime without demanding a police crackdown.

    Has anyone historically tried a more subjective and less deferential approach (perhaps in the age before Graham v. Connor)? I’d be curious if there’s any historical record of results under a different system.

  • Jeff Gamso
    31 August 2015 at 9:51 am - Reply

    That’s McArdle’s dialectic. I don’t know that there’s a solution other than what I offered at the end: Hold the cops accountable for what they do just as we hold everyone else accountable; and sack the cops who respond by not doing their job at all.

    Has that ever been the tried? Probably somewhere sometime.

    But SCOTUS took up Graham after the court of appeals said that the standard was to hold the cops liable only when they acted “maliciously and sadistically and for the very purpose of causing harm.” Graham’s bizarre formulation of nearly complete deference is actually better.

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