Over the past few weeks, the Black Lives Matter protests have kept the issue of police brutality at the top of mind for many Americans. While police conduct may be informed by hundreds of years of systemic racism, it's also guided by a specific federal court cases. So how does change happen within the context of that legal framework?
Stateside spoke with two legal experts about that question. Tracey Brame is an associate dean at Western Michigan University Cooley Law School, and Eve Primus is a professor at the University of Michigan Law School.
Something many experts point to as a stumbling block to police reform is a concept known as "qualified immunity." That's a doctrine that protects police departments and officers from civil suits when use of force has serious consequences, including death. The Supreme Court recently refused to take up eight cases dealing with qualified immunity, but the Court's previous decisions on the doctrine have had a major impact on how cases of police misconduct are handled in court.
In the mid-to-late 1980’s, the U.S. Supreme Court issued rulings in two cases that created “very amorphous tests for assessing when police use of force is excessive,” according to Primus. The first case was the 1985 case Tennessee v. Gardner. Primus says this case gave a vague framework about what warranted use of deadly force by police. It included criteria like whether the suspect had a weapon and if there was a threat to the life of the officer or others. In 1989, in Graham v. Connor, the court came up with a reasonableness test as a standard for determining whether the level of force was warranted in a particular case. To determine if a police officer used excessive force, the Court said, juries have to consider, from the officer's point of view, whether the level of force matched his or her perceived danger of the situation. According to Primus, this standard tilts the scale in favor of law enforcement.
“There are a lot of things missing from that standard,” Primus said. "So, for example, they never talk about what about the officer’s potential culpability? What if the officer escalates the situation, uses pre-seizure conduct that elevates the risk of their being a forceful encounter—should that be part of the equation? They never talk about proportionality requirements. I mean how much force should the officer use, in many aspects, probably should depend on the force the officer’s threatened with.”
These vague rulings passed down from the Supreme Court have left local courts with a framework that doesn’t take into account the relationships between police and Black communities, according to Tracey Brame. She says you can look to the killing of Rayshard Brooks as an example of how unconscious biases about race can play into a police officer's decision to use deadly force.
“The question is not was the young man resisting, or even did the officer feel as though he was in a combative situation or at least tenuous situation, but was his action necessary under the circumstances?” Brame explained. “Those are the questions we need to ask.”
Everyone has unconscious and implicit biases, says Primus, and they often show themselves in high-stress situations where people are making split second decisions. Primus says those biases, combined with a military model of training in many American police departments, have a huge impact on how police officers perceive a situation.
“That, not surprisingly, conditions officers to feel like they are going into a warzone and to encourage them to be on guard...” she said. “If they’re looking for violence, or expecting to see violence, they’re going to be more vigilant and more likely to see it.”
Primus says a community-minded approach to police training would help officers understand situations through a less confrontational lens. But policing doesn't exist in a bubble. It's intricately tied into the broader criminal justice system, including the courts.
“You see somewhat of a trend towards at least acknowledging the role that race and culture and other factors can play in these kinds of encounters,” Brame added. “I think that we could continue to get courts, along with other sectors of our community, to understand that and hold officers accountable for it."
This article was written Stateside production assistant Olive Scott.