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Police Use Of Force: How Did We Get Here And Where Can We Go?

The laws governing how much force police are allowed to use has had a long, circuitous history.
Flickr | Quinn Dombrowski

Second of two parts.

Even though a St. Louis County grand jury decided not to indict police officer Darren Wilson in the shooting death of Michael Brown, the case against Wilson is not entirely closed. The U.S. Department of Justice is also conducting an investigation into the Aug. 9 incident.

But the chances of Wilson being charged under federal civil rights laws are slim. This isn't because the federal government's investigation won't be thorough. Rather, the legal system has made it difficult to prove violations of civil rights under federal law.

Before we explore how the courts have set the bar very high, let’s consider what could change now to more effectively prevent police from using excessive force.

Fixing the problem by changing policing practices

Rather than rely on the courts to change what constitutes civil rights violations, many experts say change should start in the police academy, the chief’s office and through the carrot and stick of the Justice Department.

The Wall Street Journal reported last week that “police departments around the country are racing” to develop new training policies. In addition, a bi-partisan coalition in Congress is asking for a congressional look at police tactics and the criminal justice system, the Journal reported. The effort is bringing together Democrats and libertarian Republicans.

Cincinnati, which had more violent riots than Ferguson after a 2001 police shooting of an unarmed black teenager, failed to successfully prosecute the officer. Yet that did not keep the city from making major reforms in policing that profoundly altered the relationship between African Americans and police. These changes resulted from an ACLU lawsuit and a Justice Department civil lawsuit alleging a pattern of unconstitutional policing practices.

That “pattern or practice” lawsuit – authorized by Congress after the Rodney King riots two decades ago – has become a particularly important Justice Department tool for reform. The department currently has a pattern or practice investigation underway in Ferguson and apparently in neighboring police departments. On Dec. 4, the department announced the results an investigation in Cleveland that found a pattern of unconstitutional police force.

Attorney General Eric Holder has filed more pattern or practice cases than any previous attorney general. Those cases do not run into the legal impediments that make it hard for victims to sue police and municipalities. They are almost always successful.

Essential elements of settlements include requiring officers to wear video cameras; setting up civilian review boards; establishing policies on the constitutional use of force; providing new training in use of force; tracking officers who have persistent problems with civilians; and quickly releasing the names of officers involved in police shootings and other uses of deadly force.

The Department of Justice’s Community Oriented Policing Services, or COPS, program, also begun during the Clinton administration, uses the “carrot of federal money” for law enforcement to prod local police departments into making major changes, such as the scores of reforms that Las Vegas recently promised to make under an agreement with the Justice Department. A COPS initiative is underway in St. Louis County.

'Unfortunately, it often takes a crisis to achieve meaningful police reform.' -Roger Goldman, professor emeritus at Saint Louis University Law School

Police experts like Dave Klinger, a criminologist at the University of Missouri-St. Louis, and Saint Louis University law professor emeritus Roger Goldman want the federal government to use its “carrot” more effectively. They say the department could prod local police departments to develop best practices, improve training and create national databases of reliable data about police use of force as well as track police officers who are bad actors.

“I don’t want a federal statutory regime of laws outlawing particular police practices,” said Klinger. “Law enforcement, as long as it does not violate the Constitution, should be dictated by the states.”

Goldman has crusaded for state laws that allow for decertification of police ever since he found that police officers disciplined or fired in one district can end up in another. Goldman’s crusade began after the shooting death of Thomas Brown in the Maplewood police station in 1977. It started when Lt. Joseph Sorbello, a Maplewood police officer, was discovered to be playing Russian roulette with prisoners. Sorbello was fired in Maplewood but soon turned up at Breckenridge Hills, along with other previously dismissed officers. Sorbello later returned to Maplewood and fatally shot an unarmed suspect in the back, Goldman said.

Currently, 44 states have the power to decertify officers. Of those 44 states, 37 report their decertification results to a voluntary National Decertification Index, which now contains 18,000 names. Goldman wants a national database for all officers decertified by the state POSTs -- Police Officer Standards and Training offices.

Goldman added: “COPS should condition its funding on insuring that federal monies aren't given to departments in states that: (a) don't have a POST; (b) have a POST but the POST doesn't report their decertifications to the NDI; (c) don't have basic and continuing education requirements in areas such as use of force, dealing with mentally ill suspects, dealing with domestic violence, using military equipment appropriately, etc.

“The justification is that the U.S. should try to do everything possible to insure that its funding doesn't contribute to more Fergusons and Eric Garners.”

Goldman sums up the challenge of changing the parameters for holding police responsible:

"Unfortunately, it often takes a crisis to achieve meaningful police reform. The riots in the 1960s led to the Kerner Commission's conclusion that our nation was 'moving toward two societies, one black, one white – separate and unequal.' The riots in Los Angeles in 1992, after the acquittal of the officers who beat Rodney King, led to Congress passing the law that gave the Department of Justice the power to bring pattern or practice suits against police departments, like the one brought against the Cleveland Police Department this week. The Liberty City riots in Miami in 1980, caused by the acquittal of four police officers in the death of an African-American insurance salesman riding a motorcycle after a high speed chase, led to the Florida legislature's enacting a law giving the Florida Department of Law Enforcement to revoke the licenses of peace officers for serious misconduct.

Attorney General Eric Holder visited Ferguson Aug. 20.
Credit Office of U.S. Rep. Lacy Clay
Attorney General Eric Holder visited Ferguson Aug. 20.

"The recent police-involved shootings in Ferguson, Staten Island and Cleveland have focused the country's attention once again on the need to take meaningful action at the local, state and national level."

So, how did we get here? How did it become so difficult to prove that police have violated a person’s civil rights when they’ve used excessive force? The answer goes back to a case called Screws v. The United States.

Defining willful intent

The gruesome story of the 1942 beating death of Robert Hall by Sheriff Claude Screws illustrates the strict constitutional limits that the U.S. Supreme Court has placed on the federal criminal civil rights law that could be used to prosecute Officer Darren Wilson. It also illustrates the limits of the law in police brutality cases.

Screws, who was sheriff of Baker County, Ga., got drunk and, despite the bartender’s advice, went to Hall’s house to arrest him for stealing a tire. In the town square, Screws and two other men beat Hall for half an hour with fists and a two-pound iron blackjack. Screws said Hall had reached for a gun, but the court noted he had been handcuffed. Hall died after being dragged unconscious to a cell.

Screws was convicted in federal court under the post-Civil War Civil Rights Act passed to protect the newly freed slaves from violence. The law made it a crime for a person acting on behalf of the government to deprive a citizen of a civil right. However, Screws contended that it was his rights that were violated, not Hall’s.

Screws' argument went this way: Due process of law requires that criminal laws specify precisely what conduct is criminal. But the federal civil rights act does not do that. It makes it a crime to violate a person’s civil rights. That is not a precise description of a crime because there is so much debate about the boundaries of civil and constitutional rights.

The Supreme Court took up the case. It deplored Screws’ conduct but agreed that the federal law did not make it clear what was and wasn’t a crime.

Justice William O. Douglas, one of the court's most ardent liberals, constructed an elaborate way to save the law from being declared unconstitutional – to require proof of “specific intent” to violate a well-recognized civil right – one about which there was no debate or uncertainty. To prove specific intent prosecutors have to show the officer acted willfully, meaning with reckless disregard for the right. This is a very high standard and one that rules out federal prosecution in the vast majority of police brutality cases.

Screws’ lower court conviction was overturned, and Screws was tried again under the new standard. This time, he was acquitted. By the time of the new trial, Screws had already been overwhelmingly re-elected.

Screws v. the United States has been an impediment to federal prosecutions ever since.

Is there a way around Screws?

Marcia McCormick, a professor at Saint Louis University law school says there is a way around the precedent set by Screws. The law “could fairly easily be changed to make it easier to convict police by being more explicit about what conduct is prohibited.

“The problem with it as drafted was that it might make a crime out of action that may depend on court interpretation – due process is a vague concept, and its contours have changed over the years. The Court was worried that in a trial, a court might decide after the fact that an officer had violated the due process rights of a person. But that conclusion might not have been obvious when the officer acted.

"As long as there has been some judicial declaration (or statutory declaration) that particular rights exist and particular conduct violates those rights, then the concept won't be so vague that the officer wasn't on notice before he acted that his action would violate a person's civil rights," she said.

“Federal law could say that police officers may not use deadly force in particular circumstances, and there would likely not be a due process problem because that construction would not be vague as long as the circumstances were fairly clear.”

Goldman, at Saint Louis University, noted that Congress had passed a law making it illegal for police to search without a warrant. That is an example of what McCormick is suggesting, he said. But he also noted there have been no known prosecutions under the law.

Other Supreme Court roadblocks

Tennessee v. Garner, the case that banned use of deadly force to shoot an unarmed, non-dangerous fleeing felon, turned out to be the high point of the Supreme Court’s efforts to impact the police use of deadly force. Subsequent opinions have been more forgiving to officers.

In 1989, four years after Tennessee v. Garner, the court decided Graham v. Connor, which has facts reminiscent of the Eric Garner case in New York. Instead of involving an asthmatic like Garner, Dethorne Graham was a diabetic. He was having an insulin reaction and went to a drug store to get orange juice. When he saw the long lines he immediately left. A policeman seeing the quick exit was suspicious and detained him while he checked with the store.

Chief Justice William H. Rehnquist, a staunch conservative, described the rough treatment Charlotte, N.C., police administered.

"One officer said, 'I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the M. F. but drunk. Lock the S. B. up…' Several officers then lifted Graham up from behind, carried him over to Berry's car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to ‘shut up’ and shoved his face down against the hood of the car. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham's brought some orange juice to the car, but the officers refused to let him have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers drove him home and released him.”

Graham filed a civil section 1983 lawsuit for money damages claiming he had been left with a ringing noise in his ear. An appeals court ruled against him but the Supreme Court said he should get another trial.

The court set the legal standard for civil rights lawsuits against police that was generally forgiving for the officer.

Rehnquist wrote that the test was “objective reasonableness.” But he added, “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 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 – about the amount of force that is necessary in a particular situation.”

Rehnquist also added that the application of the test “requires careful attention to the facts and circumstances of each particular case, including 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.”

Goldman notes that the relevant circumstances laid out by Rehnquist could apply to both the Michael Brown and Eric Garner cases. Brown was fleeing and perceived by Wilson as a threat to him and others. Garner was perceived to be resisting arrest.

Car chases

Just two months before the Ferguson shooting, the U.S. Supreme Court issued a 9-0 decision in Plumhoff vs. Rickard, where most of the justices emphasized how much leeway police officers have in confrontations with suspects.

In this case, police chased a car from Arkansas into Tennessee at speeds of more than 100 miles an hour. Police managed to box in the car, but the driver kept trying to escape. Officers fired 15 shots killing the driver and a passenger.

Justice Samuel Alito Jr., writing for seven members of the court, said, “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

Alito, reiterated Rehnquist’s 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.”

Goldman, of Saint Louis University Law School, points out that the sum total of the decisions is somewhat confusing:

“Note the message that is sent a person committing a non-violent felony like selling unlicensed cigarettes (assuming that is a felony in New York). (1) If you take off running and there's no suspicion you are dangerous to the officers or others, you can't be shot by the police under Tennessee v. Garner without violating the 4th amendment. (2) If you speed away in your car, you can be shot under Plumhoff. (3) If you resist arrest because you can't run away from the police, the Eric Garner grand jury teaches us that a choke hold is an appropriate means of effectuating the arrest.

Hard to sue cops and cities

Not only does the court give officers the benefit of the doubt, it also gives them “qualified immunity,” which means a citizen whose rights were violated cannot collect unless, in Justice Antonin Scalia’s words, “every reasonable official” would have known that officer’s actions were illegal. And if a police officer perjures himself putting an innocent person in prison, he can’t be sued because he has “absolute immunity.”

McCormick, from Saint Louis University, said that should change. “The law connected with section 1983 and civil suits could be made less deferential to officers. I think that qualified immunity in the context of police conduct is too deferential, personally, and that the goal of deterring bad conduct and compensating injured people is currently not well served.”

Nevertheless the chances of changing the law are slim, legal experts say.

It also is hard to sue a municipality for the abuse of its law enforcement officials. In Connick v. Thompson in 2011, an assistant prosecutor had failed to notify the defense that crime lab reports showed that the perpetrator of an armed robbery and murder had a blood type that didn’t match John Thompson. Thompson served 14 years on death row before his lawyer coincidentally discovered the evidence. The conviction was overturned and Thompson was freed.

Thompson sued the City of New Orleans, pointing to the prosecutor’s office reputation for not turning over exculpatory evidence. He won a $14 million verdict, but the Supreme Court threw it out on a 5-4 vote. Justice Clarence Thomas wrote that the city could not be held liable because it could not be proved that its policies had violated the Constitution. The prosecutor’s violation of the Constitution did not make the city liable.

William H. Freivogel is a professor in the Southern Illinois University's School of Journalism, a contributor to St. Louis Public Radio and publisher of the Gateway Journalism Review.