The Fears of Cops Should Face More Scrutiny

Bloomberg Opinion , June 11, 2020

When Eric Garner pulls away from a cop trying to arrest him for allegedly selling untaxed individual cigarettes, police pin him down and choke him to unconsciousness and death. When Lavall Hall, a skinny schizophrenic wearing only boxer shorts and an undershirt, resists efforts to get him to come inside, police Taser and then shoot him. When Sandra Bland argues with a cop who stops her for not signaling a lane change, he threatens her with a Taser and arrests her; she dies in jail in what is later ruled a suicide. And, of course, when George Floyd is handcuffed for allegedly passing a counterfeit $20 bill, an officer kneels on his neck for nearly nine minutes, killing him and igniting nationwide protests.

It’s an all-too-familiar pattern. Someone does something minor that someone else finds threatening. The alarmed party overreacts and summons the full force of authority to suppress the threat. The offender becomes a victim. Essential rights are infringed. The damage is both personal and social.

To understand the problem, consider a less dangerous setting where a similar scenario occurs: college campuses.

When a man working his way through college as a janitor reads a book called “Notre Dame vs. the Klan” in the break room, he is charged with racial harassment. When a literature instructor asks in a faculty training session how the school’s sexual harassment policy applies to false or ridiculous allegations, he is fired. When a student starts a Facebook group mocking a student government candidate as “a jerk and a fool,” he is found to have committed “personal abuse.” When a literature professor quotes the defiant black author James Baldwin using a racial slur, contrasting its use with the bowdlerized version in the title of a recent documentary, and when a law professor uses the same epithet while discussing systemic racism, both are accused of discrimination.

Outsiders roll their eyes at such incidents. Some call students “snowflakes.” Facing criticism for suppressing academic freedom and First Amendment rights, the colleges back down, sometimes immediately, sometimes to end litigation. Faced with sustained attention, they can’t justify the claim that the behavior represents a threat. The most fearful or sensitive audience doesn’t get to decide what’s permitted.

The underlying pattern is the same as in encounters between police and civilians they perceive as threats, but the outcomes aren’t. On the streets, fear triumphs. Even when its results are lethal, the overreaction rarely faces the same cold-eyed critique.

Publicized or not, such encounters lead to few trials and convictions. In an analysis of the 385 fatal police shootings in the first five months of 2015, including Lavall Hall’s death, the Washington Post found that only three led to criminal charges against the officers involved. Another Post investigation with researchers at Bowling Green State University found only 54 prosecutions over a decade that included thousands of police shootings. Many of those shootings were justifiable self-defense. Others saved the lives of civilians. But even when the evidence is strong that lethal force was unnecessary, such cases are hard to win.

Civil-rights lawyer David Rudovsky, co-author of the reference work “Police Misconduct: Law and Litigation,” explained the dynamic in a 2014 Vox interview. “When an officer is on trial, reasonable doubt has a lot of bite,” he said.

The argument is: “Okay, members of the jury, the prosecutor is saying ‘he shot too quickly, he should have waited,’ but the fact is that if he'd waited another three seconds he could be dead. The fact is that a lot of cops are killed in the line of duty, and sometimes they're killed because they wait too long.” That's an effective emotional argument.

Juries, led by an industry of expert witnesses, tend to support cops accused of wrongdoing, believing they as civilians can’t possibly understand the stresses of the job. Instead of skeptically scrutinizing claims that officers felt threatened — asking not merely what they felt but whether that feeling was “objectively reasonable,” as the law supposedly requires — juries are easily swayed to identify with the fearful cop.

This emphasis on subjective fears unique to police officers mirrors what we hear in debates over free speech and sexual harassment on college campuses. There, many of the same people who would reflexively defend the police argue, correctly, that universities should not put the feelings of the hypersensitive over common sense and free expression and that any punitive action should require objective standards of significant harm. Not so when the fearful are cops.

To reduce that deference, the Justice in Policing Act just introduced on Capitol Hill includes provisions that would revise the standards for federal police. It requires that any force be the only reasonable alternative — “necessary” rather than justifiable.

“As we all know, we can reason away just about anything,” Senator Kamala Harris, the California Democrat, said at the news conference announcing the bill. “The appropriate and fair question to ask is — was it necessary?” (A similar measure restricting the use of deadly force passed last year in California.)

But even if the law changes, juries ultimately decide how to apply it. “We have a cultural willingness to defer extensively to the police when they say that they are afraid,” says Ken White, a former federal prosecutor who is now a Los Angeles criminal law and First Amendment attorney, podcaster and blogger. To hold police responsible, he says, “there has to be a cultural willingness to reject the idea that cops have to be absolutely taken at their word as to when they need to use force.”

And that requires getting juries “to identify with the people who are the subject of the violence as much as they identify with the cops.” George Floyd’s brutal death may have shifted perspectives.

At the very least, police wielding deadly force deserve as much scrutiny as students wielding harassment complaints. We shouldn’t treat them like snowflakes with badges and guns.