Michael Brown was just two days away from starting college when he was shot dead by police over the weekend on the streets of his hometown of Ferguson, Missouri. His death has sparked tense, sometimes violent protests, a national Twitter movement, and analogies to the 2012 shooting of Trayvon Martin. There are many facts still unknown, as the FBI commits to supplement the local investigation and U.S. Attorney General Eric Holder said the case deserves a “fulsome review.”
Witnesses say 18-year-old Brown was simply walking down the street with a friend when a police car first pulled up and demanded that Brown get into the car. Police present the uncorroborated counter-narrative that “there was a struggle over the officer’s gun” after the unidentified officer exited the car and haven’t released many facts about the case, not even the name of the officer who fired the gun. And outrage by many over the death of yet another young black male has sparked a showdown between protesters and police in which officers have deployed tear gas and residents have looted local stores.
With so many unknowns, it’s still possible that Brown presented a threat to police officers of the sort that justifies police deadly force. But Brown is part of a long and painful trend of black, unarmed men killed by the cops, including two others that made national headlines in just the past week. Why does this keep happening, and why don’t more officers face serious repercussions or deterrence?
The answer in part is that the justice system protects police officers in fundamentally distinct ways — both in law and in policy — meaning that even if the police were in the wrong, they are particularly unlikely to be held accountable for their actions.
Scant Accountability For Police
For decades, advocates have lamented a dearth of national data on police shootings and police accountability. Yet still, little is available to quantify excessive force and accountability. Limited assessments of some cities and incidents paint a picture. A series of investigations by the Philadelphia Inquirer in the mid-1990s found that punishment imposed on officers by the police department was reversed or reduced nearly two-thirds of the time after going to arbitration. In New York, despite many fatal shootings, not one officer was convicted of homicide for an on-the-job shooting between 1977 and 1995. And in the Atlanta area, a spokesperson for the Fulton County District Attorney told Human Rights Watch he could only recall three instances of police officers being charged for anything at all over a five-year period.
A Human Rights Watch investigation in the mid-1990s found that federal prosecution is also scant. Of the civil rights cases reviewed, the Department of Justice pursued just .2 percent as official misconduct cases. Prosecutors say this is largely because the standard for civil rights investigation is so high: the prosecution has to prove “specific intent” to deprive someone of his or her civil rights.
Police are subject to varying standards on when they can use deadly force. But most hinge on a standard of “reasonable” force when the lives of others or their own are perceived to be in danger. Assessing this reasonableness is difficult in any context. But police officers have difficult and deadly jobs, which is why the U.S. Supreme Court has established that legal deference to police determinations of what is “reasonable” “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 — about the amount of force that is necessary in a particular situation.”
Some states even have special procedural roles for police officers. In Georgia, for example, police officers’ lawyers get to present arguments during the grand jury investigation. Typically only the grand jury presents evidence before the panel decides whether the individual should be indicted. Prosecutors are also institutionally inclined not to prosecute police, particularly the local authorities who typically must work with the very same officers to prosecute others.
‘Reasonableness’ And Race
After the 2012 death of unarmed teen Trayvon Martin, figures as prominent as President Obama and U.S. Attorney General Eric Holder opened up about fear for themselves, and other young black men, over encounters with police and other accountability figures. Holder said Martin’s death “caused me to sit down to have a conversation with my own 15 year old son, like my dad did with me” about how to interact with police. He told an NAACP audience last year, “I was stopped by a police officer while simply running to a catch a movie, at night in Georgetown, in Washington, D.C. I was at the time of that last incident a federal prosecutor.” These comments were some of the most prominent illustrations of a known bias against African Americans in police stops — even in the Missouri town where Brown was killed — and in the criminal justice system as a whole. Even after the death of black victims, the viral Twitter hashtag #IfTheyGunnedMeDown portrays the tendency of officials and the media to portray young black victims as thugs rather than as accomplished, loving members of families and communities.
In the case of George Zimmerman, many questioned what it meant for him to have “reasonable” fear of grievous bodily harm when that fear derives even subconsciously from a person’s race. Studies suggest this is exactly how many Americans’ brains process threat perception. In recent testimony on the impact of Stand Your Ground laws, psychologist Jennifer Eberhardt explained that several recent studies have depicted alarming correlation between race and perceived threat. In one, she said subjects who simply looked at a black face were more likely to see weapons, regardless of the person’s prejudice level. In another, she found that people were quicker to shoot black men with guns than white men with guns, and to shoot black men without guns if there was any doubt about whether that person possessed a gun.
Another study also focused specifically on perceptions of police officers. “When we ask police officers directly, ‘Who looks criminal?,’ they choose more Black faces than White faces. The more stereotypically Black a face appears, the more likely officers are to report that the face looks criminal,” the authors reported in Stanford’s Journal of Personality and Social Psychology.
Even police perceptions about their own racism vary by race. According to the U.S. Commission on Civil Rights, “most white officers (95 percent) do not believe police are more likely to use physical force against blacks and other minorities than against whites in similar situations. The majority of black and other minority officers (69.5 percent) believe persons who look like them are more likely to receive physical force from police.”
Couldn’t They Have Used A Stun Gun?
As uproar and tense protests emanated after Brown’s death, Michael Brown’s mother, Lesley McSpadden, “collapsed in tears” as she described her pain, according to KCTV News. She didn’t understand, she said, why police coudn’t have just subdued her son with a club or stun gun. If police were simply aiming to subdue him, why couldn’t they have used less than deadly force?
That question hangs over many of the fatal police shootings in which the victim had no gun, and in many instances no weapon at all. In any particular case, the officers can best explain their rationale. But as a matter of police practice, policies, training, and the law may dictate against using less deadly measures. For one thing, officers have broad legal cover for using deadly force to subdue a suspect. The law spells out when officers are justified in using deadly force, but it provides no rule about first exploring less deadly measures. Just as Stand Your Ground laws impose no duty to first retreat before using deadly force in self-defense, police officers are likewise authorized to use force without caveats.
For another, many departments simply don’t equip officers with other tools in their belts. Tasers have become disfavored because they have been vastly overused in the past even when “talking and patience work just fine,” as criminal justice scholar and former police officer Peter Moskos has explained. They are also sometimes deadly.
Fear and skewed perceptions of what constitutes a dangerous situation also affect police behavior. “[Policing] should be a hands-on job, but the people who make the rules don’t like that because they get sued and cops get hurt, and so they go for this notion of hands-off policing,” Moskos said.
As Philadelphia Commissioner Charles Ramsey said in a report on police use of force, “When you ride around all day long and you’re dealing with shootings, you’re dealing with robberies, you’re dealing with all this violent crime that’s constantly going on, that’s going to also influence how you respond in certain situations. And we have to take that into account in our training. We teach our officers to try to interact with people and realize that not everybody in a given neighborhood is a thug or a criminal, they’re not all out to hurt you. These are important things that I think we’ve got to face head on.”
Data suggests that current training is only exacerbating this psychological bias. Psychology Professor Dennis Rosenbaum is studying officers and has found that they come out of police academy already having a bias toward use of force.
In a New York Daily News op-ed after last week’s fatal NYPD chokehold of Eric Garner, Moskos lamented that while the NYPD handbook has many instructions about what not to do, it gives little guidance about what is allowed. In his view, “It may look excessive, but it isn’t, not if it’s necessary.”
Individuals may disagree about what was necessary in Eric Garner’s case, although the medical examiner deemed his death a homicide. But members of the public were able to see for themselves what police did and didn’t do, because a bystander videotaped the incident — one who has since been arrested by that very police department. In Michael Brown’s case, there is no recording. Even a police car on the premises was not equipped with a dash cam, although attaching video recorders to police vehicles is increasingly common because cameras are associated with a dramatic reduction in excessive force.
Instead, we have the word of witnesses against the police.