Opinion, Berkeley Blogs

How the Supreme Court allowed police brutality to persist

By Osagie Obasogie

police restraining protesters on the street

police restraining protesters on the street

This article was originally published in August 2019 inThe Atlanticin response to a then-proposed bill in the California state legislature to change the circumstances in which law enforcement would be authorized to use deadly force. The bill, AB 392, was signed by Gov. Gavin Newsom and went into effect at the beginning of 2020. While the impact of this change in California state law is unclear, the federal constitutional rules on use of force discussed in the article provide a useful context for understanding how the United States Supreme Court's approach to use of force issues creates the conditions for police brutality to persist.

On a late-fall afternoon in 1984, in Charlotte, North Carolina, Dethorne Graham started to feel ill. He understood what was happening; insulin reactions from diabetes were a regular part of his life. Graham asked his friend William to drive him to a local convenience store where he could buy orange juice to offset the effects. Graham walked in, but left quickly after seeing a long line at the counter.

M. S. Connor, a Charlotte police officer, was nearby. Connor, an African American like Graham, thought it was odd that someone would enter and leave the store so quickly. The officer followed Graham and his friend for about a half mile in his squad car before pulling them over. After speaking briefly with the two men, Connor called for backup.

Graham got out of the car. As he wavered in and out of consciousness, he found himself handcuffed and lying on his stomach on the sidewalk. Graham tried to explain his medical condition, but the group of officers didnt believe him and mistook an insulin reaction as him simply being drunk. The officers pulled him up from behind, slammed his head on the hood of his friends car, and pinned him facedown, with an officer leaning heavily on each limb. They then picked him up and threw him inside the patrol car. At one point, a friend familiar with Grahams condition ran over to the scene with orange juice to help. Graham begged one of the officers for the drink. She responded: Im not giving you shit.

After the clerk at the convenience store confirmed that nothing unusual had happened, the officers drove Graham home. He was left with a broken foot, several lacerations, and what he would later describe as a persistent ringing in his right ear. Little did Graham know as he writhed in pain that this episode would lead, five years later, to one of the most important U.S. Supreme Court decisions in modern history,Graham v. Connor. While the decision stemming from this incident is not well known, its influence has been far-reaching.

Since the beginning of the Black Lives Matter movement, in 2013, stories concerning police use of force have been prominent in thenews and on social media. Much of the public conversation has focused on a collective exasperation: How is it that police can beat and kill men and women, many of them unarmed, yet rarely be held accountable?

The answer lies in large part in the 1989Grahamdecision. Graham brought a federal claim against the Charlotte police officers, under a civil-rights statute called 42 U.S.C. 1983, in the U.S. District Court for the Western District of North Carolina. He argued that the excessive use of force against him violated substantive due process, or his right to be free from such abuse under the Fourteenth Amendmentone of the Reconstruction amendments ratified after the Civil War to give African Americans full legal equality with whites.

The trial court, as well as the Fourth Circuit Court of Appeals, sided with the officers. But, in deciding to review the case, the Supreme Court made a surprising move. Until that point, the legal standards through which federal courts reviewed claims of excessive force by state and local policewere diverse. Many cases used substantive due process under the Fourteenth Amendment, following an earlier Second Circuit Court of Appeals decision inJohnson v. Glick, in which a detained man alleged that a correctional officer had assaulted him. This standard had been criticized, however, for emphasizing officers subjective mental statethat is, whether the force was applied in good faith or maliciously and sadistically for the very purpose of causing harm.

In theGraham decision, the Supreme Court held that substantive due process was not the applicable constitutional standard. Rather, the Court said the proper constitutional test was whether the action was reasonable under the Fourth Amendment, which prohibits unreasonable searches and seizures. (Use of force by the police during an arrest or investigative stop is understood to be a type of seizure.)

The choice was significant. Turning away from theFourteenth Amendmentas a constitutional standard would come to represent a missed opportunity to situate excessive force in minority communities as a long-standing structural problem. The Fourth Amendment was developed at a time when slavery was condoned by the Constitution, and it is largely preoccupied with the relationship between individuals and the government. The Fourteenth Amendment, on the other hand, has its roots in the postCivil War effort to extend legal equality to former slaves. Particularly through its clause guaranteeing equal protection of the law, it reflects an awareness of how racial groups, not just individuals, can face state persecution. (Although the Fourteenth Amendments due-process clause is what allows the Fourth Amendment to apply to state and local police, as opposed to only the federal government, theGrahamdecision nonetheless represents a significant retreat from the Fourteenth Amendments original purpose of protecting racial minorities from state violence and other inequities.)

The Courts decision to embrace a Fourth Amendment perspective that frames excessive force as an isolated interaction between police and individuals would impede federal courts ability to consider how race and racism can influence an officers decision to use force. To be sure, beforeGraham, substantive-due-process claims concerning police violence focused largely on individual liberty rather than structural conditions. But shifting the constitutional standard for excessive force away from the Fourteenth Amendment would prove to hinder courts ability to consider such abuse as a problem tied to issues of equal protection and racial subordinationin turnlimiting the types of claims that victims of police violence could successfully bring. The disproportionate policing of racial minorities and the state-sanctioned violence that often ensues (performed by officers of all racial backgrounds) had been a direproblemin communities of color, and would continue to be. Decades after theGrahamdecision, research would show that black men arethree times more likely to be killed by the policethan white men. Police violence would come to be understood as amajor public-health issue.

Moreover, in articulating the new standard for judging excessive-force cases, theGrahamCourt didnt do much to describe what reasonable means. William Rehnquist, the chief justice at the time, provided a few guideposts, such as paying 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. But he also wrote that reasonableness is difficult to describe, noting that 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 vagueness of the standard for what counts as excessive force would have sweeping implications. Initially, some believed that its use would favor plaintiffs, because the reasonableness test seemed more objective. But this perspective would prove overly optimistic. It has provided limited tactical guidance for how police officers should treat people and how judges and juries should understand claims of police misconduct. Dethorne Graham saw this firsthand. Following the Supreme Courts decision, his case went back to the trial court so that the jury could review the evidence under the new rules. Yet the jury concluded that the police officers behavior toward him was reasonable.

Subsequent decisions by the Supreme Court and lower federal courts have continued theGrahamdecisions legacy of ambiguity in considering what constitutes reasonable force on the part of officers. Many police departments have also created their own set of administrative rules on when force is appropriate.

But these policies sorely lack specificity. In a study forthcoming in theCornell Law Review, for which I am the lead author, my co-author and I analyzed use-of-force policies from the 75 largest U.S. cities and showed that they regularly fail to provide meaningful instruction to police on when to use force, or how to do so in ways that increase the likelihood that people will survive. For example, only 31 percent of the policies required officers to exhaust alternatives before using deadly force, and only 17 percent had policies that instructed officers to use force that is proportional to a persons resistance. Meanwhile, all of the policies we examined restateGrahams reasonableness standard, many times directly citing the case. The vagueness of this standard creates wide discretion for police and few protections for community members.

Our examination of the case law also showed that when people file lawsuits alleging that police used excessive force, federal courts often reference or defer to police departments use-of-force policies as the appropriate legal interpretation of reasonable. For example, in a 2004 case before a federal district court in West Virginia, in which an officer fractured the leg of the plaintiff, Kevin Neiswonger, as he tried to restrain him, the court held that the officer acted reasonably under the circumstances to protect both Mr. Neiswonger and himself, in accordance with the Morgantown City Police Departments Use of Force Policy, and thus did not violate Mr. Neiswongers Fourth Amendment right to be free from unreasonable search and seizure. In this case, as in many others, federal courts were influenced by the idea that as long as an officers behavior does not violate the use-of-force rules created by his own department, his actions are not unreasonable and therefore not unconstitutional.

This suggests that the ongoing epidemic of police violence is not simply the result of what former Attorney General Jeff Sessionsonce describedas 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, theindividual bias often found among police officerscan quickly translate into violence against minority communities.

Despite thethousands of livesthat have been lost to police violence since theGrahamdecision, the Supreme Court has shown little interest in rethinking its approach. State and local governments, however, have the opportunity to be more proactive. For example,CaliforniaGovernor Gavin Newsom is expected to signAssembly Bill 392, the California Act to Save Lives, which would change Californias current standard regarding police use of deadly force under state law (which looks at whether it was reasonable) by requiring that police use force only when necessary. This new termis not clearly defined, and some advocacy groups that fought for the bill havewithdrawn their supportdue to this and other shortcomings. But in shifting from an ambiguous and deferential concept to a more concrete and cautious one, the proposed law seeks to encourage officers to prioritize other ways to resolve situations before using force that often shatters bodies, destroys lives, and fractures communities.

Laws like A.B. 392 wouldnt solve the police-violence crisis alone. Many aspects of policing need reform, such as rules on qualified immunity, which can shield officers who use excessive force, and the level of community participation when police departments develop or revise use-of-force policies. However, A.B. 392, despiteits limitations, may offer an instructive case study in whether less permissive rules regarding police use of force can change the culture within police departments and perhaps save lives.