Why It’s Impossible to Indict a Cop
Chapter 563 of the Missouri Revised Statutes grants a lot of discretion to officers of the law to wield deadly force, to the horror of many observers swooping in to the Ferguson story. The statute authorizes deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”
But this law is not an outlier, and is fully in sync with Supreme Court #jurisprudence. The legal standard authorizing deadly force is something called “objective reasonableness.”
This standard originates in the 1985 case of Tennessee v. Garner, which appeared at first to tighten restrictions on the police use of deadly force. The case involved a Memphis cop, Elton Hymon, who shot dead one Edward Garner: 15 years old, black and unarmed. Garner had just burgled a house, grabbing a ring and ten bucks. The US Supreme Court ruled that a police officer, henceforth, could use deadly force only if he “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The ruling required that the use of force be “objectively reasonable.” How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others. All this appeared to restrict police violence—even if, in the end, Officer Hymon was never criminally charged for fatally shooting Edward Garner.
“Objectively reasonable”—what could be wrong with that? But in actual courtroom practice, “objective reasonableness” has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.
The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. Such was the case of Berkeley, Missouri, police officers Robert Piekutowski and Keith Kierzkowski, who in 2000 fatally shot Earl Murray and Ronald Beasley out of fear that the victims’ car was rolling towards them. Forensic investigations established that the car had not in fact lurched towards the officers at the time of the shooting—but this was still not enough for the St. Louis County grand jury to indict the two cops of anything.
Not surprisingly then, legal experts find that “there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare,” says Walter Katz, a police oversight lawyer who served on the Los Angeles County Office of Independent Review until it disbanded in July of this year. According to Erwin Chemerinsky, dean of the UC Irvine Law School, recent Supreme Court decisions are not a path towards justice but rather a series of obstacles to holding police accountable for civil rights violations.