Months after the killing of George Floyd, Black Lives still matter and police violence remains an issue. Why can it be so difficult to convict the police in the US? And how is the US American legal process responsible for those difficulties? An important analysis of legal and political obstacles to justice.
By Ella Kennedy
There are an estimated 900-1000 fatal shootings by police in the US every year – that’s more than 2 every day – not to mention thousands of counts of serious assault and harassment. These crimes are disproportionally committed by white officers against black victims, igniting protests such as the Black Lives Matter movement, which fights against racially motivated violence against black people, including by police. We expect those who commit crimes, particularly the ultimate crime of taking a life, to face the full force of the justice system. However, this very rarely happens when the perpetrator is a police officer - for numerous appalling legal and political reasons.
In this article I will outline some of these reasons by taking a look at the different stages of the legal process: the prosecutor’s decision to bring charges, the legal test applied in the courtroom, the influence of the jury, the aftermath following conviction, and the prospects for an alternative civil claim.
The decision to prosecute
If the accused officer is to even set foot in a courtroom, they must be prosecuted. The relevant prosecutor will decline to bring charges if they determine that the admissible evidence is unlikely to lead to a conviction at trial.
One important factor that will make a conviction unlikely is insufficient evidence. Ideally, the incident will be corroborated by civilian video recordings, officers’ bodycam footage, and dashcam footage from the officers’ vehicle, as well as witness statements from both police and members of the public. However, members of the public are not always present to film the incident or provide witness statements, or the incident may escalate so quickly that there is no time to record it, body- and dash-cam footage may be inconclusive or these cameras may even have been switched off, and police may be unwilling to testify against their colleagues. In the absence of evidence, its one man’s word against another’s, which is not enough to prosecute.
The prosecutor will also consider the likelihood that the jury will convict. If some factor is likely to inspire sympathy for the officer, or prejudice against the victim, then it will be difficult to secure a conviction. This reinforces problematic jury biases, which I will return to later.
Politics also influences the decision to prosecute. Prosecutors in the US are elected to their positions by local citizens, and so are conscious to make prosecutorial decisions which appeal to the public. Polls have found that the majority of the American public are pro-police, encouraging prosecutors to drop charges against officers. In addition, the prosecutor may work in the same department as the officer under scrutiny, creating serious bias as they may know the accused personally, and may rely on their relationship with the department to do their job.
Furthermore, prosecutors will be eager to agree plea deals rather than go to trial, since securing the conviction of a police officer at trial is difficult, and trials which become messy can damage the prosecutor’s reputation. This means that officers are often able to negotiate very light sentences despite having committed grave crimes.
In some cases, the prosecutor will work with a grand jury to decide whether to prosecute. A grand jury is a group of lay individuals tasked with investigating potentially criminal conduct and determining whether the available evidence suffices to bring charges. In some cases, the grand jury can exert significant power to prevent a prosecution, in part because it acts as a test-run of how a jury will receive the case. For example, a grand jury recently reviewed the case of Breonna Taylor, a 26-year-old black woman shot dead by police this year as they raided her flat searching for drugs they believed her ex-boyfriend was storing there. The grand jury declined to issue manslaughter or murder charges to any of the three white police officers at the scene, instead opting for the lesser offence of wanton endangerment, for the shots they fired that did not hit Breonna, but could have hit someone else. The grand jury is yet another barrier to prosecution.
These factors combined partially explain why between 2005 and 2017 only 82 officers were charged with murder or manslaughter in relation to an on-duty shooting, a minute proportion of the thousands of shootings that occurred during this period.
The legal test
If the prosecutor does bring charges, and the officer does not accept a plea deal, the case will go to court and be subject to the legal test for the use of force by police. This test has seen significant development through case law over the last 35 years.
Before 1985, police could use any force necessary to effect an arrest, including shooting and killing the suspect. However, in 1985, the case of Tennessee v Garner changed this. In this case, police fatally shot an unarmed black 15-year-old as he attempted to escape over a fence following a burglary from which he stole $10. The US Supreme Court ruled that the existing law on police force was contrary to the 4th amendment to the US constitution, which grants the American people protection from unreasonable seizures. The law was amended so that police may only use deadly force if the suspect poses a significant threat of death or serious physical injury to the officer or others.
This test was amended further in 1989 with the landmark case of Graham v Connor, which established the law as it applies today. In this case, the victim, again a black man, was physically and verbally assaulted by police after attempting to buy orange juice to regulate his blood sugar levels. The subsequent trial established that rather than requiring ‘malicious intent’ from the offending officer, they must have acted ‘objectively unreasonably’. This was seen as a win for victims of police violence since the prosecution no longer had to get inside the head of the officer, but could make an objective comparison with a reasonable officer instead.
Unfortunately, the judgement has not had this effect. When the Graham case went back to trial after the Supreme Court ruling, the jury found the officer in question not guilty. Since then, the judgement has been used to acquit numerous police officers, including the killers of Tamir Rice, Eric Garner and Philando Castile, to name a few. In fact, the Graham judgement is now seen as a shield for police, and is even taught as a defence to officers during police training.
The reason for this is that the judgement directs jurors to judge the reasonableness of the use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight", considering that “police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation”. This means that the jury has to decide whether the officer was reasonably fearful for their wellbeing or that of another in the single moment that they decided to use force, regardless of what led up to that moment. Hence, if a suspect reaches into their pocket, or opens the glove compartment of their car, even if they have posed absolutely no threat up until that moment, the jury may find that the officer reasonably feared that they were reaching for a gun. This amplifies racial prejudices, as white jurors may sympathise with an officer’s fear of a black suspect. When the jury is directed to look only at this split-second decision, the whole concept of reasonableness changes.
Graham is a large part of the reason that officers who face trial are acquitted. It has been harshly criticised, and alternative tests have been circulating in the lower courts. One such test is taken from a different part of the judgement, which refers to the ‘totality of circumstances’. This would mean that the reasonableness of the officer’s conduct is taken in the context of the entire interaction with the victim, rather than the single moment that they decided to use force. However, any alternative test would need to be endorsed in a case that made it all the way to the Supreme Court.
As well as the legal test, another important factor in the courtroom affecting whether the officer is convicted is the jury.
As mentioned, the majority of Americans view the police positively. Police are perceived as enforcers of law and not as the bad guys, a view that is difficult to shake when confronted with the contrary. They are also perceived as highly trustworthy, meaning that when accounts of the incident in question differ, the officer’s is often accepted as the truth.
The way that the profession of policing is perceived may also influence the jury. Many people feel that police have a particularly difficult job involving significant stress and pressure, and so are willing to give them more slack when judging their conduct. Further, policing is seen as a job done for the safety and wellbeing of the general public, and jurors may believe that this makes officers fundamentally good people. The jury may also consider that police are expected to use force in the course of their work, unlike members of the public. This sets a very different standard of reasonableness for police compared to the rest of society.
In addition, American citizens can only serve on the jury if they do not have a criminal record themselves. This may mean that they lack sympathy for victims who commit a crime during the incident or prior to the incident, are suspected of having committed a crime, or have a criminal record. For example, a jury member may deem it unthinkable to speed away from a police officer attempting to pull them over on the road, and see this conduct as entirely inexcusable and justification for the excessive use of force by police.
Furthermore, racial prejudices can expose themselves forcefully in jury deliberations. Though racist arguments are occasionally presented in court, it is behind the closed doors of the jury room that jurors feel most free to express racist views. This issue is compounded by the jury selection process, which allows the defence to block non-white potential jurors from serving, and may lead to an all-white jury judging the killing of a black person by a white officer.
Ultimately, if a case reaches court the jury has the final word on the fate of the officer. They may misunderstand the legal test, or prioritise, consciously or subconsciously, their preconceptions over the test itself. This may explain acquittals which seem incomprehensible in the face of immense evidence of objective unreasonableness.
Even if the offending officer is found guilty, against all the odds, what occurs after the finding of guilt may be an injustice in itself.
If the offending officer entered into a plea deal, they may have their charges reduced and serve less time accordingly. Similarly, if the officer is found guilty for a lesser crime than murder or manslaughter (as in the Breonna Taylor case) they will serve a shorter sentence. Even if the officer is convicted for murder or manslaughter, the average sentence served by police for these crimes is much shorter than for regular citizens, suggesting that it is difficult to persuade judges or juries to hand out long sentences to police.
For example, officer Antonio Taharka served a mere 3 months in jail after fatally shooting a probation violator as he attempted to evade capture. Despite being indicted for voluntary manslaughter, which carries a 20-year maximum sentence, his charge was downgraded to involuntary manslaughter, carrying a 10-year maximum, following public outcry. Ultimately, the judge concluded that since the killing was “not malicious and ill-wanton”, a 3 month sentence would suffice, stressing that “What you [Taharka] have to deal with from a day-to-day basis as an officer of the law, no one can stand in your shoes other than you.” This shows that judges can hold the same biased preconceptions as jurors.
What’s more, the judge ruled that if Taharka complied with 9 years’ probation, his criminal record would be wiped. This exemplifies another injustice which occurs in the aftermath of police criminality: the special treatment they are given, even after committing the most serious of offences. They may have their record wiped, and get their old job back immediately, performing the same role in the same community that they committed the crime. They may even be promoted and given greater responsibilities soon after their release from jail. When compared to the average experience of a convict, who may struggle to find employment for years after their offence, lose child custody rights, lose the right to bear arms, and be stripped of professional licenses, the post-conviction experience of police is a clear injustice.
Alternative civil claim
In the likely event that the victim of excessive police force, or their relatives if the incident was fatal, is failed by the criminal justice system, they may bring a civil claim with the aim of receiving monetary compensation for their loss rather than sending the offending officer to prison. However, this path to justice is similarly rigged.
The Civil Rights Act of 1871 established the right for American citizens to file a civil lawsuit if a public official violates their rights. This means that, in principle, an individual may bring a civil claim against a police officer who violates their 4th amendment right to protection from unreasonable seizures. If they do this, the court will apply the legal doctrine of qualified immunity, established in the 1982 Supreme Court case of Harlow v Fitzgerald.
In this case, the Supreme Court justices held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." This means that the prosecutor must identify precedent (a past case) which found a past instance of the same incident to be in violation of the victim’s rights, or the accused will be shielded from the civil claim.
The problem with this is that the past case must involve the exact “same context” and “particular conduct” as the present case – a standard which is hard to meet. The court can point to the slightest difference between the cases to argue that there is no clearly established precedent. Two examples of facts deemed significant enough to distinguish the cases were the distance between the officer and the victim, and the location of the incident (a car park versus the roadside). In the words of the Institute for Justice, “qualified immunity means that government officials can get away with violating your rights, so long as they violate them in a way that no one has before”.
A compounding issue is that if the judge decides that there is no clearly established precedent, they don’t need to rule on whether the conduct in the present case did in fact violate the victim’s rights. This means that no new precedent, upon which future victims of police violence could rely, is created.
The doctrine is currently preventing victims of police crime from receiving the compensation they deserve, and there is growing momentum to overturn it. However, in June 2020 the Supreme Court declined to hear a series of cases which asked the court to revisit the doctrine, evidencing judicial opposition to change. Without judicial support, qualified immunity will continue to amplify injustice in this area of the law.
The current state of the law and politics in the US massively shields police from liability at every stage of the justice system. We may question why police receive this special treatment at all, while doctors, for example, who have a similarly stressful and pressured job in the public service, face liability when they make professional mistakes. Even if some protection is conducive to better policing, the extent of the current protection is blatantly unjust and deeply prejudiced.