The Right to Life? Policing, Race, and Criminal Injustice

Editor’s Note: An earlier version of this article was presented at the 2007 meeting of the Academy of Criminal Justice Sciences. The author originally discussed the Grant, Tolan, and Johnson cases at http://thecrimereport.org/2009/01/30/race-and-the-police-can-a-black-president-change-the-game. The author would like to thank doctoral fellow Nicole Hanson and graduate students Sheena Blaise and Cameo Christian for their assistance in conducting the research for this article.

During the early morning hours of January 1, 2009, two innocent black men were shot by police, one on a crowded subway platform, the other just outside his parents’ suburban home. One died, the other lived. Just three weeks earlier, a seventeen-year-old black high school athlete had mysteriously died during a traffic stop in Lucedale, Mississippi. So, despite the election of our first black president and much talk of great strides in race relations, these incidents and the reactions to them clearly suggest that America has not yet proven to be “postracial.”

The death of twenty-two-year-old Oscar Grant at the hands of a white transit authority officer in Oakland, California, was captured by several cameras and cell phones. Though witnessed by many, the shooting failed to receive national media attention for several daysСand seemingly only after footage appeared on the Internet. It is unclear whether the law enforcement agency failed to report the incident publicly out of fear that the racial dynamics would incite a riot or because the death of yet another young black male was not considered news, even under these circumstances. Grant was being questioned, with others, about a fight that had reportedly taken place on a train on which he had been riding. Videos show that he was not resisting the officers, and he even can be heard asking other civilians to cooperate with the police. He was unarmed. For reasons that cannot be deduced from the videos, officers began to maneuver Grant into a position where he was made to lie facedown on the subway platform. They also began handcuffing him. Suddenly, for reasons yet to be explained, an officer reached to his side, produced a gun, and shot Grant in the back. If the shooter were a civilian, any onlooker would conclude that Grant was being executed. However, because the shooter was a policeman (who has since resigned), pundits quickly offered excuses for his behavior, the most prevalent being that he was reaching for his taser but accidentally pulled his handgun instead.

In the second shooting mentioned above, the police reportedly were investigating incidents of stolen vehicles in a middle-class Texas suburb when twenty-three-year-old Robert Tolan Jr. was shot. Tolan was the son of a retired Major League Baseball player and was himself progressing through the minor leagues. By at least one account, the Bellaire officer who shot Tolan admits to electronically checking Tolan’s license plate when he observed Tolan and a male cousin returning home after a late night trip to a fast food restaurant. It is alleged that the officer received inaccurate information that the vehicle Tolan was driving had been reported stolen. Despite Tolan’s pulling into a private residential driveway and informing the officer that the vehicle belonged to him and that he was at his own home, both he and his cousin were ordered to lie down on the ground. When his parents heard the commotion and went outside (in their pajamas), they too were treated like criminals. Tolan’s mother was pushed against the garage, and his father was made to stand with his hands on the hood of another vehicle parked in the driveway. When Tolan leaned up to verbally protest his mother’s treatment, he was shot. The bullet passed through his lung and lodged in his liver. The officer has claimed that he thought he saw Tolan “reach for something.” However, Tolan was unarmed. It may be worth noting that the Tolans are the only black family living on the block.

In the Mississippi case, a grand jury has already ruled Billey Joe Johnson Jr.’s death accidental, while early reports suggested suicide. The accidental death ruling was made even though the evidence-laden vehicle that Johnson was driving at the time of his death was left outside his parent’s home the day after the shooting, before the investigation of the case was complete. Brain matter and other forensic evidence were still in plain sight when the car was returned. The authorities claim that Johnson, an avid hunter, accidentally shot himself with his own shotgun during the traffic stop, which occurred shortly after an altercation at the trailer park home of his white girlfriend. The blood-spattered car also contained many recruitment letters from big name college football programs.

In a race-neutral world, cases such as these would sound bizarre, at the very least. They would defy logic and the natural order of things. They would confirm that something had gone terribly wrong. Police officersСsworn to protect and serve Сhave instead produced patently unacceptable outcomesСthe death and serious injury of innocent human beings.

The Universal Declaration of Human Rights, adopted by the United Nations in 1948, presents a world we are striving to attain. Article 1 posits that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Article 3 notes that “[e]veryone has the right to life, liberty and security of the person,” and Article 5 promises that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (emphases added). Yet in the United States, which voted in favor of that declaration, events such as those outlined above have begun to occur so oftenСwith black victimsСthat they seem to have become mundane. They are something that “just happens,” “tragic mistakes” that occur during the “ordinary course of police work.” They are “the cost of keeping our streets safe,” or, my very least favorite, “simply a matter of officer safety.”

Targeting a Community?

While we can agree that nothing is simple about these situationsСreading Malcolm Gladwell’s description of the Diallo incident in Blink will reinforce that perceptionСwhat is most disturbing is that such “mistakes” have become predictable, along with the racial identity of the victims and the outcome of criminal charges. What is it that prevents prosecutors, grand and petit jurors, and trial judges from recognizing the reckless and criminally negligent behavior of police that occurs in some urban neighborhoods? What is it that keeps police officers from learning not to commit such “mistakes?” Finally, can these incidents legitimately be called “mistakes” when they consistently involve certain groups as victims?

February 4, 2009, marked the ten-year anniversary of the fatal shooting of twenty-three-year-old Amadou Diallo by members of the New York City police department. That case gained international notoriety because Diallo was a law-abiding immigrant of African ancestry who was fired upon forty-one times in front of his home in a Bronx neighborhood. When that case is considered alongside that of Sean Bell, the infamous fifty-shot wedding day shooting that occurred in Queens nearly eight years later, we realize that these New York City police officers fired ninety-one shots in a total of two incidents within residential communities at times when many people were certain to be home. Further, in both incidents the intended victims and the people put at risk by police action were primarily people of color. In their attempt to interdict nonexistent crimes and to protect themselves, the police disregarded the potential harm to scores of innocent people.

For those who wish to give weight to the police claim that Sean Bell attacked them with his car, why would that action give them permission to shoot Joseph Guzman and Trent Benefield, his passengers? For those wishing to give credit to accounts that an officer believed he heard one of the Bell trio say, while still in the club they were visiting that night, “Get the gun from the car,” how do they reconcile the fact that no gun was recovered and that the police allowed the trio to reach the car before confronting them? These police actions raise serious factual and ethical questions. The fact that two of the four officers fired forty-two bulletsСnearly ten times the number fired on average by members of the department in other incidentsСshould certainly equate to depraved indifference. Surely, it would have if forty-two bullets were fired by two gang members under similar circumstances. In the alternative, it amounts to reckless conduct not covered by the justification defense under New York law even when the actor is a law enforcement officer. Or, at the very least, the behavior is criminally negligent because it is outside of the kind of behavior that a “reasonable” police officer would exhibit if he or she cared about the well-being of others. In the Bell case, a commuter on an elevated train platform half a block away was barely missed by one of the officers’ bullets. He deserved not to be endangered in that way, and yet the trial judge found all officers not guilty of all charges.

Interestingly, that trial judge seemed to indicate that his decision was partly influenced by his sense that some of the testimony given during the criminal trial was designed to make a case for a subsequent lawsuit. He seemed disturbed by this possibility, which may have clouded his ability to make a fair and impartial decision based on the evidence and the criminal law. His concern may not have been off the mark. While judges and jurors rarely find officers liable for criminal charges, civil judgments or settlements have been awarded fairly consistently when competent lawyers represented the victims’ families.

A National Problem

What do the names Carolyn Adams, Anthony Baez, Sean Bell, Richard Brown, Amadou Diallo, Patrick Dorismond, A. Demetrius Dubose, Jonny Gammage, Oscar Grant, Gary Hopkins, Nathaniel Jones, Prince Jones, Irvin Landrum Jr., Anthony Dwaine Lee, Tyron Lewis, Tyisha Miller, Margaret Mitchell, Roger Owensby, Christopher Ridley, Timothy Stansbury, Timothy Thomas, Cornel Young, and Ousmane Zongo all have in common? They were all people of color who died at the hands of the police, and they represent just a sampling of victims from incidents across the country. The circumstances of their deaths were disparate: they were unarmed, seeking medical assistance, involved in or suspected of low-level crimes, or even attempting to do their jobs as law enforcement officers. The first from among this list of deaths (Anthony Baez) occurred in 1994 and, as noted, the most recent (Oscar Grant) occurred in January of this year.

The bench trial decision in the Baez case, in New York City, is one of four cases that prompted me to write an article titled “License to Kill: Recent Developments in the Police Use of Deadly Force.” The acquittal in the Baez case was announced one month before the decisions in the cases of Adams, Gammage, and Lewis. Those three cases were decided during a single week in October 1996. The deaths occurred in New Brunswick, New Jersey; Brentwood, Pennsylvania; and St. Petersburg, Florida. Adams was shot for biting a police officer. Gammage died while five police officers kneeled on his back during a traffic stop. Lewis, an unarmed eighteen-year-old suspected car thief, was shot. All four of the cases involved a minority victim killed by the police, and no criminal liability was assessed to the killers. It is important to note that while each of these cases involved white police officers, black and Latino officers are not immune from such questionable behavior.

Consistent with my prediction that by failing to indict or convict in the earlier cases, the judge and jurors were issuing police officers a license to kill, by February 2001 the number of publicized lethal cases about which I was writing had increased by ten, all occurring from 1998 through 2000. The deaths had occurred in eight different locations, including two in New York City; one each in Claremont, Los Angeles, Riverside, Hollywood, and San Diego, California; one in Providence, Rhode Island; and two in Prince Georges County, Maryland. In these ten incidents, the police had fired a total of 114 shots. The victims’ ages ranged from eighteen to fifty-five. The victims were men and women, although most were male. They included high school and college students, a Hollywood actor, a former National Football League player, a homeless woman, a teenage woman needing medical assistance, a bouncer, a street vendor, and a police officer. Because only two of these cases even resulted in indictments and none in a conviction, I felt compelled to write “Fatal Profiles: Too Many ‘Tragic Mistakes,’ Not Enough Justice.”

While the Supreme Court decision Tennessee v. Garner, 471 U.S. 1 (1985), appeared to limit the use of deadly force by police to situations involving persons suspected of serious and dangerous felonies, many of the victims I was following were suspected of traffic offenses, misdemeanors, or nonviolent felonies. This alone should created a presumption against the reasonableness of police use of deadly force unless there was a substantial factual showing that such force was necessary.

Instead, in the criminal cases that resulted, it seems that the officers needed only to utter the word “fear” to be determined not liable for criminal conduct. There is little serious inquiry as to whether the fear was rational or whether it was based on or influenced by racial stereotypes or other constitutionally impermissible assumptions. In the pending Grant case, the fear that the officer may have experienced may not even have come from the behavior of Grant himself. At the time of the shooting, Grant, his companions, and the officers were surrounded on three sides by raucous onlookers. Some criminal justice “experts” have gone so far as to suggest that the officer’s behavior toward Grant may have been justified based on the behavior of the crowd. Such a suggestion impermissibly subjugates Grant’s right to life to the safety concerns of the officers.

Million Dollar Bodies

As Table 1 illustrates, almost as consistently as police officers are not successfully criminally prosecuted for these deaths, municipal budgets are strained covering the civil awards assessed in these cases. Nearly all of the closed cases summarized did not result in criminal convictions. However, taken together with the pending cases, they have produced civil awards or requests exceeding $248 million. The size of these awards suggests that the police have, in fact, done something wrong. But, these monetary sanctions appear to have little or no deterrent effect on the behavior of individual officers.

One might easily accept that the disparity between the criminal and civil liability outcomes for these police actions is due to the different burdens of proof in criminal and civil litigation. However, the fact that most of the cases are not even successfully indicted (in a criminal proceeding where the burden of proof is markedly similar to that in civil cases) militates against that argument. More likely, in those cases that go to juries, some morally decent people attempt to balance the need (or responsibility) to send the message that the police did “something wrong” (civil cases) with the simultaneous urge to support and believe in the police for “putting their lives on the line” (criminal cases). Indeed, the reactions of jurors and the public generally are difficult to fathom. Certainly, some civilians are resentful of monetary awards when no criminal liability was found. Still others think that these types of incidents are not a significant social problem because, “after all, look at all the money that those families are getting.”

The racial divide over how we can prevent these million dollar bodies must be bridged. I have argued that the only way to reduce questionable police killings is to take seriously the notion that everyone has individual constitutional and human rights. Any indication that a police officer has engaged in violent conduct against a person based on assumptions about the group to which that person belongs, the neighborhood in which he or she is encountered, his or her style of dress, or his or her pattern of speech is a violation of the Bill of Rights and the Universal Declaration of Human Rights. The right to life cannot be bought off by civil settlements and judgments. Prosecutors, jurors, and judges must revoke the license to kill and condemn rather than accept the use of fatal profiles. In the interest of justice, law enforcement agents must be trained to abandon or control the profiles that some seem inclined to use consciously or subconsciously during interactions with minoritiesСand young black men in particular. It is clear that using such profiles makes some police agents more fearful and less rational in the mere presence of black men (see the Cincinnati case of Thomas or the New York City cases of Stansbury and Zongo), regardless of their social status (see the Prince Georges County case of Jones). Families would rather have their loved ones alive instead of having to settle for monetary consolation prizes. Neither justice nor the value of human life should be in the position to be bought or sold.

The former police officer who shot Grant has been indicted for murder. A first degree aggravated assault charge has been lodged against the officer who shot Tolan. The family of Johnson is left to wonder how their son “accidentally” ended up dead during the course of a “routine” traffic stop. In each of these cases, the question has been raised, would this have happened if the victims had been white? The answer haunts all of us, especially the honest, careful, and law-abiding people who make up the bulk of law enforcement personnel. By giving the benefit of the doubt to the few officers who act outside the law, prosecutors, judges, and jurors condemn the many to suspicion, fear, and loathing. This is not much unlike the faulty thinking that resulted in the deaths of those officers’ victims.