I speak of ironies due to the high profile nature of the two grand jury decisions that have been reached over the course of the past two weeks in regards to the untimely deaths of Michael Brown and Eric Garner as a result of police use-of-force. I speak of the ironies because at the time the grand jury decisions were being reached, I was writing papers for Grad School on the issue of police accountability. As I wrote my papers and tried to keep up with the news on these two cases, both of which I have followed from the beginning, I was disturbed by many of the questions and attacks used as a means to distort the narrative of each case. First, allow me to dispense with reality: Each case is different and deserves observation and analysis from a unique lens that distinguishes one case from the other. Second, neither case should be used as hallmark examples of overriding racism within the ranks of police forces across the United States. Certainly, there is something to be said about the disproportionate number of African-American’s affected by the criminal justice system, but those questions are better understood within the paradigm of legislative policy and not the actual performance of police departments. That being said, when evaluating inter-departmental racism, the observer would need much more facts than two high-profile incidents to justify a larger concern of police racism.
Having dispensed with the hyperbolic claims of racism – for now (I will get to that later) – It’s important to understand what Peace Officer Standards and Training (POST) identifies as the appropriate means by which an officer is to use force. Contrary to what may be believed or perceived by the lay observer, a police officer does not, nor cannot make use of force decisions arbitrarily or capriciously. Police Officers must adhere to a binding legal standard, supported by case law, statute, and departmental policy as to the use-of-force. As it pertains to departmental policy, each department must maintain training for its officers in high liability areas such as use-of-force in order to be compliant with POST standards. When one chooses to examine and scrutinize a police officer’s use-of-force, to be objective, that observer must keep in mind the guidelines set by the court precedent in Graham v. Conner. As an article in Policemag.com aptly put it: “Using the Graham standard, an officer must apply constitutionally appropriate levels of force, based on the unique circumstances of each case. The officer’s force should be applied in the same basic way that an “objectively reasonable” officer would in the same circumstances. The Supreme Court has repeatedly said that the most important factor to consider in applying force is the threat faced by the officer or others at the scene.”
From Graham v. Connor we learn several things about police officer use of force: 1) Force used must be reasonable; 2) Force can be used to effect an arrest; 3) Force can be used to overcome resistance; 4) Force can be used to prevent escape. In order to for 2-4 to be successfully understood and reasoned, the observer must determine if the force used was reasonable. The concept of “reasonable” is not based on a “feeling” one may have with benefit of hindsight, but based on the standard of a reasonable officer at the time of the incident.
Using this framework to understand use-of-force, we can move onto understanding the case involving Michael Brown and Officer Wilson. Officer Wilson was on Patrol in a local neighborhood on August 9, 2014 at 12:01pm. At approximately 11:53am, Officer Wilson received a dispatch providing a Be on the Lookout for a black male suspect wearing a red Cardinals hat, white T-Shirt, yellow socks, and khaki shorts accompanied by another black male. The BOL was issued for a local robbery that had just occurred at a local convenience store. While driving on Canfield Avenue in Ferguson, MO, Officer Wilson came upon Wilson and his companion walking in the middle of the road. Officer Wilson appropriately ordered them to move off the road so they wouldn’t present a hazard to themselves or to other drivers on the road. After driving past them, Officer Wilson stopped his vehicle, realizing that Michael Brown matched the description to the subject of the BOL for the robbery issued 8 minutes prior to the contact. Dispatch records for Ferguson Police Department state that at approximately 12:02pm, Officer Wilson called for a backup unit to assist him with his investigation.
Being that Michael Brown matched the description of the subject involved in the convenience store robbery that occurred not far from the location of contact, coupled with a companion, Officer Wilson had reasonable suspicion to detain him. The legal standard for reasonable suspicion is defined as:
“Reasonable suspicion is a standard used in criminal procedure. It is looser than probable cause. Reasonable suspicion is sufficient to justify brief stops and detentions, but not enough to justify a full search. When determining reasonable suspicion, courts consider the events leading up to the brief stop and decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion.
Courts look at the totality of the circumstances of each case to see whether the officer has a particularized and objective basis for suspecting legal wrongdoing.”
Given the facts of the case up to this point, Officer Wilson knew that he was possibly dealing with a robbery suspect. At this point, he only had reasonable suspicion to detain Michael Brown only to ascertain whether or not Brown was involved in the robbery that had occurred. To a lesser extent, Officer Brown had enough to cite Michael Brown for jaywalking, which he had probable cause for. It should be noted that neither of these issues would justify, nor should be meant to construe that Officer Wilson would be reasonable to detain Brown at the point of a gun. That is exactly what did not happen. Officer Wilson did not detain Brown at gunpoint, he was physically challenged by Brown, a larger man, who charged at Officer Wilson, as Wilson was disembarking from his patrol vehicle. A struggle ensued between the two, and according to autopsy reports, gunshots were fired during the struggle. Reports state that after the initial struggle, Michael Brown and his companion fled the scene and hid behind a vehicle. Based on the nature of the incident Officer Wilson was investigating, as well as the struggle between him and Michael Brown, in which, Brown allegedly attempted to dislodge and disarm Officer Wilson, probable cause existed for an arrest of Michael Brown for both strong armed robbery of the convenience store, as well as assault on a police officer. The assault on the police officer charge is made more serious by the fact that a gun was involved, and Brown attempted to dislodge it. The fact that Brown fled from Officer Wilson after the initial assault is irrelevant. At this point, as supported by case law precedent in Tennessee v. Garner force was justified by Officer Wilson. Also by court precedent via Graham v. Connor, Officer Wilson could be held to the reasonable officer standard by which the benefit of hindsight offered by lay commentators lack relevance.
The case of Michael Brown, though tragic is not an example of racism by Officer Wilson, the Ferguson Police Department, the Grand Jury, or the St. Louis County Prosecutors office. The calls of racism by observers in this matter are white noise to create a spectacle where none exists. Strong Armed robbery is a serious matter, even if it involved the shoplifting of cigarillos at a local convenience store. Michael Brown made what might have been a trivial matter (A misdemeanor) into a larger matter by using force on the clerk of the convenience store as shown in the subsequent video of the robbery that day. At the risk of sounding like I’m victim shaming or victim blaming I will say unequivocally: Michael Brown killed Michael Brown.
The case is not the same for Eric Garner in New York City. The result of this case was even more tragic, and sadly not with the same fanfare as the Ferguson shooting. Eric Garner was stopped and detained by New York City Police Department in Staten Island for hustling cigarettes without a license “loosies”. The video is appalling when you watch it. Even I, as a police officer was angered by the actions taken by officers on-scene at that incident. For such a trivial matter, those officers should have weighed their actions before determining the result. Was it really worth detaining Eric Garner for hustling loosies on a sidewalk? Maybe. Was it worth using force on Eric Garner to get him to comply with the officer’s will? Absolutely not. Again, I revert back to the reasonable officer standard as set forth in Graham v. Connor. Though Officer Pantaleo and his cohorts had the right to detain Eric Garner for selling loosies on a public sidewalk, the use-of-force to get him to comply was not reasonable. As far as my understanding is concerned, municipal code violations, county ordinances typically amount to infractions, hardly a reason to use force. There is no public safety risk and there is no right to arrest. One may argue that Eric Garner being belligerent with the officers was enough to carry a charge of resisting or delaying an officer. My answer: so what? Officers run that risk every time they stop someone on the road for a traffic violation. What if police officers used that kind of force everytime someone was rude to them when they’ve been stopped for speeding? Would it be reasonable for the officer to rip the person out of their car, apply a chokehold on them and force their hand to sign the ticket? Absolutely not. This case is no different.
In an article written by the Washington Post, author Ilya Somin cites Yale Law School Professor Stephen Carter who asks law students to take pause and consider the consequences of an overregulated state:
“On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce.”
This is something to think about, both for the lay observer, as well as the police officer working the street. Vested authority in a police officer means complying with the law, but also making the right decision based on judgement. The fact that Officer Pantaleo and the NYPD were executing a city ordinance against unlicensed sales of cigarettes in public spaces signals a deficiency in the hyper-regulated state, but it also signals hyper-vigilance and over-compliance by police officers with a law, which though they had a right to enforce, perhaps did not have the right to enforce with such vigor.
Neither of these cases are examples of racism though. One case was a clear example of timing, performing a vested duty, coupled with a tragic result (Officer Wilson), the other is an example of police over-invested in order maintenance policies constructed in the brackish waters of New York City politics. If one wants reform of police departments and police practices, though it isn’t entirely wrong to examine both police officer misconduct and organizational misconduct through the lens of race, it also convolutes the true message and necessity for reform. It’s my hope that my readers understand this and try to correct the problem by understanding the issues specifically and comprehensively so they can help moving forward with both healing and reforming our justice system.
