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Tamir Rice, Michael Brown, Akai Gurley, Alton Sterling, Sandra Bland, Eric Garner, Philando Castile, Charles Kinsey, Sean Bell, Amadou Diallo, Jordan Edwards, all unarmed, innocent people. All killed. The world knows who killed them. Some of their deaths have been broadcast on video for the world to see. But their killers remain largely unpunished. The men, women, and CHILDREN listed above share two commonalities: (1) they were Black, and (2) they were killed by police.

How can police kill Black people seemingly with impunity and without facing punishment? Are police racists just looking for pretexts to kill Black people? Are Black people disproportionately represented in police shootings because they disproportionately commit armed robberies, carry firearms, and engage in threatening behavior? Are the innocent victims of police shootings hapless victims of circumstance rather than victims of police bullets? Or maybe Cynthia Lee of George Washington University Law School is correct and the truth is as follows:

Racial stereotypes operate at a subconscious level to influence the police officer’s decision to use deadly force because of the suspect’s race, but the suspect’s race nonetheless influences the officer…A simple question, Officer why am I being stopped?” may be perceived as behavior challenging the officer’s authority when asked by someone who is Black.i

Regardless of the reason, there is a public perception that police can kill Black people without facing punishment and an insidious belief that the innocent dead somehow deserved to be killed. Police killings of unarmed Black people must STOP and police officers, defense attorneys, prosecutors, judges, and legislators have a duty to ensure that it does.

Statistics and Tactics

One of the biggest problems our country faces in solving the problem of police killings is finding accurate data. The only official, national effort to catalogue officer-involved shootings is the FBI’s tabulation of justifiable homicides committed by state and local police.ii Data is submitted voluntarily and unaudited.iii Although the Death in Custody Reporting Act of 2013 does require that local law enforcement supply data regarding the death of any person who is detained, under arrest, or is in the process of being arrested, is en route to be incarcerated, or is incarcerated at a municipal or country jail,iv the national data is sparse at best.

The data that does exist comes from private sources or individual police departments so we have to make due with estimates. In 2008, police officers interacted with individuals nearly 67 million times and used force or threatened use of force in 1.4% of those encounters.v Use of force is more common in traffic stops than street stops.vi As one would expect, police are more likely to use force against a suspect especially when making arrests than in other situations.vii Most police violence involves grabbing, pushing, or hitting rather than use of weapons.viii

Although Black people make up around 13.2% of the U.S. population, 26.7% of the people killed by police in 2015 were Black.ix White people, who were 77.4% of the population, were 50.7% of the individuals killed by police in 2015.x Even more staggering, 25.8% of the Black people killed by police in 2015 were unarmed as contrasted with 17.9% of whites.xi These statistics are nothing new. The first widespread scholarly analysis of mass lethal police force concluded that police shot greater numbers of Black victims than those of other races.xii By 1988, nothing had changed prompting the eminent criminologist James J. Fyfe to write that “every study that has examined this issue has found that [B]lacks are represented disproportionately among those on the wrong end of police guns.xiii

Right now police violence is currently receiving more media attention than it has in years past, but it is likely that police violence is actually down. Through the early seventies, very few police departments had any written policies on use-of-force.xiv Leading police texts said nothing about deadly force and officers described a “Wild West” and “open season” mentality toward using weapons, in which warning shots could be fired and fleeing suspects could be shot.xv

In 1971, then Ph.D. candidate Fyfe, who had also been a Lieutenant in the New York Police Department, completed one of the first large-scale analyses of police violence. The central theme of Fyfe’s dissertation was that police work is not an unending series of instant life-or-death decisions.”xvi Instead careful and systematic use-of-force policies, police tactics and training, and strong supervision and investigation were required to minimize use of force thereby protecting civilians and police.xvii

Dr. Fyfe’s PHD dissertation examined all shooting incidents in New York City from 1971-1975. His work included a data set of 3,573 instances, involving 4,904 officers, and 2,926 shooting incidents of police firearm discharges and assaults on police by people who either were armed with deadly weapons or inflicted serious physical injury.xviii Fyfe added much to the discipline of criminology identifying robberies as giving rise to the most shootings in New York Cityxix and recognizing the existence of “force prone” officers. He wrote that while the Department had tended to look the other way, it did have measures in place to identify such officers.xx Fyfe also explored the problem of shootings by off duty officers who used to be required to carry their weapons at all times.xxi

In a follow up study, Fyfe found that a considerable reduction in the “frequency of police shooting accompanied New York City’s direct intervention on the firearms discretion of its police officers” and the adoption of new and more restrictive use-of-force policies in 1972.xxii These reductions occurred in “the most controversial shooting incidents: shootings to prevent or terminate crimes…[and] these shooting decreases were not accompanied by increased officer injury or death.”xxiii This suggested even in 1972 that there was a strong connection between use-of-force policies and actual use force used by police while also showing that readily using deadly force did not make police safer.xxiv

Fyfe’s research led him to the following conclusions: (1) There was extreme variation in rates of police shooting across jurisdictions; (2) shootings disproportionately involved Black victims but were also associated with community violence and arrest rates; and (3) organizational factors regarding police policies, training, and police chief priorities affected police shootings.xxv Fyfe made the following recommendations: (1) Police departments should institute clear policy guidelines to limit the use of deadly force, and (2) Policy guidelines should be related to the dangerousness of suspects and should prohibit use of deadly force to apprehend nonviolent suspects.xxvi

The Arc of Fourth Amendment Use-of-Force

Dr. Fyfe’s work has influenced not only police departments across the nation but also Fourth Amendment use-of-force analysis. As a starting point, the Fourth Amendment protects individual liberty by guaranteeing the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”xxvii To determine whether an intrusive government action violates that protection, the Courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing government interest at stake.xxviii” The key inquiry in assessing whether police shootings violated the victims’ Fourth Amendment right was whether the shooting was unreasonable given the totality of the circumstances.

Tennessee v. Garner, 471 U.S. 1 (1985), would bring Fyfe’s analysis to forefront of U.S. jurisprudence. In Garner, the Supreme Court cited two pieces authored by Dr. Fyfe: (1) his article “Observations on Deadly Police Force;xxix” and (2) an amicus brief he authored for the Police Foundation, which both recommended prohibiting use of deadly force in the absence of threats to officer safety.xxx Garner involved the killing of Edward Garner, an unarmed Black, eighth grader in Memphis, Tennessee.xxxi Memphis Police Officers had been dispatched to a burglary in progress and were in pursuit of someone they believed to be the burglar.xxxii During the chase, Officer Elton Hymon spotted Garner crouching near a fence and believed him to be the fleeing suspect.xxxiii Officer Hymon believed him to be seventeen or eighteen and was “reasonably sure” that Garner was unarmed.xxxiv Officer Hyman identified himself as an officer and shouted for Garner to halt, but Garner started climbing the fence.xxxv To prevent his escape, Officer Hyman shot Garner in the back of the head and Garner died soon after.xxxvi

The common law rule, applicable Tennessee statute, and policy of the Memphis Police Department had been that police officers were authorized to use deadly force to stop fleeing felons regardless of whether they posed a threat to the officer.xxxvii Yet the Court found that Officer Hymon’s killing violated Garner’s Fourth Amendment rights.xxxviii

The Court reasoned first that deadly force was justified only when “the officer ha[d] probable cause to believe that the suspect pose[d] a threat of serious physical harm, either to the officer or to others.xxxix” The reason that the Court overturned the old rules was because both Fyfe’s analysis and actual police practices reflecting that analysis showed that “a majority of police departments…had forbidden the use of deadly force against nonviolent suspects.”xl

However later versions of the Court re-imagined Garner and interpreted the Fourth Amendment use-of-force doctrine in a manner fare more deferential to police. Garner’s dissent laid the foundation for the current use-of-force analysis. The dissent argued that “the apprehension of a criminal necessarily involves swift action predicated upon on-the-spot observations.xli” The dissent decried the majority’s rule writing, “silence on critical factors to the decision to use deadly force invites second guessing of difficult police decisions that must be made quickly in the most trying of circumstances.”xlii Most troubling for use-of-force analysis, the dissent wrote that given “the difficult, split-second decisions officers must make in these circumstances,xliii” the “clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain often dangerous circumstances.xliv

Graham v. Connor would make the Garner dissent into law and it is the current law on police use of deadly force. In Graham, Mr. Graham asked his friend to drive him to the store to buy orange juice to counteract the onset of an insulin reaction due to his diabetes.xlv Upon entering the store and noting a large line, Graham rushed out of the store to get orange juice from a different location.xlvi A North Carolina police officer became suspicious after seeing Graham hastily enter and leave the store and made an investigative stop.xlvii The backup officers who responded to the scene handcuffed Graham, ignored his pleas for sugar, and prevented him from drinking the orange juice already purchased by his friend; he fell into diabetic shock and sustained various injuries due to officers slamming him onto car hoods and denying him timely sugar.xlviii Mr. Graham sued and the Supreme Court found that Graham’s rights under the Fourth Amendment had not been violated; instead, the court wrote that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving.xlix” The Court made this decision even though Graham was unconscious and the officers had plenty of time to verify Graham’s claims without placing him under arrest.

The Graham rule and the current law is as follows:

The Fourth Amendment “reasonableness” inquiry 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. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.l

Professor Fyfe has described this “split-second” decision making process as a fallacy,li however this is the current rule that gives police officers endless deference.

Denial and Deflection

The response of some politicians and misguided police defenders to criticism of the unending deference courts give police is troubling. Almost every time that there is a police killing of an unarmed Black man, woman, or child and Black people request justice, politicians and pundits give some version of the following responses: “What about Black on Black crime?” and “What about crime in Chicago?” For example, former New York Mayor Rudolph Giuliani said in response to criticism of police killings: “police killing Black people happens rarely although with tremendous attention, instead…[the public should] focus on Black-on-Black violence, which happens every 14 hours in Chicago.lii"

This type of response is an absurd deflection which does nothing to address the problem of police killings of innocent people. Our country reveres police officers as heroes. We give them power over life and death. We give them weapons and train them to use those weapons properly and accurately. We have the right to expect that the police use those weapons to protect us; not kill us when we are innocent. There is no relationship between the police killing unarmed and innocent people and Black on Black crime or White on White crime or the massacres in East Timor. Moreover Black on Black crime is punished as soon as it is discovered with no one rushing to defend the criminals. Mentioning so called “Black on Black” crime is a disingenuous method of shifting the discourse from police accountability to purported Black pathology.

It is obvious that police do not enforce all of the laws all of the time; instead, they enforce some of the laws, some of the time, in some places.liii Similarly, prosecutors enforce some of the laws some of the time on some defendants. Even when officers are convicted of killing innocent Black people, prosecutors have recommended the most lenient sentences possible. Take for example the case of Akai Gurley and Peter Liang. Officer Peter Liang shot and killed Akai Gurley while he was patrolling the Brooklyn housing project in which Gurley lived.liv Gurley was doing nothing wrong and was not suspected of committing any crimes.lv A jury found Liang guilty of manslaughter but then the Black Brooklyn District Attorney recommended that instead of the customary 15 year prison sentence, he should face 5 years of probation plus 500 hours of community service.lvi

Contrast that treatment along with the refusal to indict the multiple police officers who have killed innocent Black people with the manner in which police treated Cliven Bundy. Bundy had been illegally grazing his cattle on government owned land in Nevada for 20 years.lvii After numerous court orders instructing Bundy to remove his cattle, federal agents descended onto the ranch to forcibly seize Bundy’s cattle. Bundy and armed supporters engaged in a public, armed stand-off against federal troops.lviii No government officials fired a shot and on April 12, 2014, then Bureau of Land Management Director Neil Kornze said that the government would actually release the cattle to Bundy because of “serious concerns about the safety of employees and members of the public.lix” Simply staggering! Imagine what would have happened had Bundy and his ilk been Black and brandishing guns while threatening federal police.

A Way Forward

First, let us remember that “there is a complete lack of evidence supporting any clear association between police shootings and reduced crime rates.lx” Therefore public criminal punishments of police officers who wrongly kill unarmed, innocent people are the best hope of stopping police killings of unarmed Black people. Yes policing is a dangerous and difficult job. And that is the job police choose, for which they are trained, and for which they receive numerous rewards! Police are human and make mistakes as do we all. However the unconscious or conscious biases of police affect their conduct and when that conduct takes lives, there must be justice.

Just the erosion of public trust and faith in police is reason enough to make the legal standard more severe. The data shows that the current standard is far too permissive. Moreover because we give police so much power, we HAVE to have higher levels of oversight. We cannot grant police endless deference and discretion regarding whom they choose to kill. Returning to the Garner standard that “a police officer can only use deadly force when he has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or others” would curtail some of this police discretion, would not harm any officers, and would save many lives.

There are civil remedies available to the victim’s family when a police officer kills an unarmed, innocent person but a detailed treatment of sovereign immunity and Monnell is outside the scope of this article. Suffice it to say that it is possible for decedents’ families to sue municipalities and receive large sums of money. However, these settlements have not had the effect of stopping the killings. Municipalities indemnify police officers so the municipality, not the officer, pays any settlement or judgment stemming from officer conduct while on duty. Second, Non-Disclosure Agreements and gag orders routinely accompany settlement agreements between municipalities and decedent heirs so the public never sees that the officer lost the case or was forced to settle the civil trial. Thus the public remains unaware of any punishment the officer received for the killing.

Former Attorney General Janet Reno described why these effects are more than just a Black problem:

Tensions between police and minority residents affect all aspects of the criminal justice system. When citizens do not trust their local police officer, they are less willing to report crime, and less willing to be witnesses in criminal cases. Jurors are less willing to accept as truthful the testimony of officers, and recruitment of officers from minority communities becomes that much more difficult.lxi

For our judicial system to function, it is imperative that all of the people trust the police. Police are people and they are fallible and WE the people give them the power of life and death. They seem aware of the weight of their responsibility when faced with Cliven Bundy but when faced with a 12-year-old boy with a toy gun, they become victims of circumstance. This is a discrepancy that can and must be fixed.

i Cynthia Lee, “But I Thought He Had a Gun” – Race and Police Use of Deadly Force, Hastings Race and Poverty L. J. (2004) pg. 6.

ii See U.S. Dep’t of Justice, Fed. Bureau of Investigation, Uniform Crime Reporting Program Data: Supplementary Homicide Reports (2012).

iii Id.

iv 42 U.S.C. § 13727 (2014)

v Christine Eith & Matthew R. Durose, U.S. Dep’t of Justice, Bureau of Justice Statistics, Contacts Between Police and the Public, 2008 at 6, 12 (2011).

vi Lynn Langton & Matthew Durose, U.S. Dep’t of Justice, Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011 at 10, 12 (2013).

vii Joel H. Gainer & Christopher D. Maxwell, Measuring the Amount of Force Used by and Against the Police in Six Jurisdictions, in Use of Force by Police: Overview of National and Local Data 25, 39, 41 (Nat’l Inst. of Justice & Bureau of Justice Statistics eds., 1999)

viii Eith & Durose, supra note 5 at 12-13.

ix The Counted: People Killed by Police in the U.S., The Guardian,

http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database.

x Id.

xi Id.

xii James J. Fyfe, Police Use of Deadly Force: Research and Reform, 5 Just. Q. 165, 189 (1988

xiii Id.

xiv Samuel Walker, The New World of Police Accountability 41 (2005).

xv Id. at 42

xvi James J. Fyfe, Observations on Police Deadly Force, 27 Crime & Delinq. 376, 378-81 (1981).

xvii Id.

xviii James Joseph Fyfe, Shots Fired: An Examination of New York City Police Firearms Discharges 55 (Apr. 1978) (unpublished Ph.D. dissertation, State Univ. of N.Y. at Albany).

xix Id.at 500.

xx Id. at 257.s

xxi Id.

xxii James J. Fyfe, Administrative Interventions on Police Shooting Discretion: An Empirical Examination, 7 J. Crim. Just 309, 422 (1979) reprinted in Readings on Police Use of Deadly Force 258, 277 (James J. Fyfe ed., 1982).

xxiii Id.

xxiv Fyfe, supra note 21 at 277-79.

xxv James J. Fyfe, Blind Justice: Police Shootings in Memphis, 73 J. Crim. L & Criminology 707, 707-08 (1982).

xxvi Fyfe supra note 13 at 388.

xxvii U.S. Const. amend. IV.

xxviii Graham v. Connor, 490 U.S. 386, 396 (1989)

xxix U.S. v. Garner, 471 U.S. 1, 10 (1985).

xxx Id. at 18-19.

xxxi Id. at 3.

xxxii Id.

xxxiii Id.

xxxiv Id.

xxxv Id. at 4.

xxxvi Id.

xxxvii Id. at 12.

xxxviii Id. at 22.

xxxix Garner, 471 U.S. at 11.

xl Id.

xli Id. at 27-28 (O’Connor dissenting) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).

xlii Id.at 32.

xliii Id. at 23.

xliv Id. at 32.

xlv Graham, 490 U.S. at 386 note 38.

xlvi Id.

xlvii Id.

xlviii Id.

xlix Id. at 396-397.

l Id. at 386.

li James J. Fyfe, The Split-Second Syndrome and Other Determinants of Police Violence, in Critical Issues in Policing: Contemporary Readings 466, 475-77 (Roger G. Dunham & Geoffrey P. Alpert eds., 2010).

lii Statement of Rudolph Guiliani, Guillliani: Blacks Must Say What They Are Doing Among Themselves About the Crime Problem, article in Face The Nation by Emily Schutheis, Jul. 10, 2016. http://www.cbsnews.com/news/giuliani-blacks-crime-problem-dallas-police-rap-music-chicago/

liii Nirej S. Sekhon, Redistributive Policing, 101 J. Crim. L. & Criminology 1171, 1215 (2011).

liv [Author Unknown] Brooklyn DA Says Cop Who Killed Akai Gurley Should Not Go To Prison, Mar. 24, 2016. http://www.huffingtonpost.com/entry/brooklyn-da-says-cop-who-killed-akai-gurley-should-not-go-to-prison_us_56f3f2f6e4b04c4c376160a9.

lv Id.

lvi Id.

lvii Matt Pearce, Cliven Bundy Still Owes the U.S. Government $1 million. What Are the Feds Doing to Collect It? Los Angeles Times, Jan. 7, 2016. http://www.latimes.com/nation/la-na-cliven-bundy-fines-20160107-story.html

lviii Id.

lix Id. (internal citations omitted). Bundy has since been arrested peacefully and is currently in federal custody.

lx James J. Fyfe, Observations on Police Deadly Force, 27 Crime & Delinq., 379 (1981).

lxi Janet Reno, Speech at the Justice Department Police Integrity Conference (June 9, 1999).

 

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