Legal Crash Course: Policing
This page attempts to explain the legal framework behind law enforcement use of force cases from a fundamental level up to the specifics of the present day. Doing so allows anyone to identify where bias influences use of force trials the most, and does so in a way which is technically legal, despite our typically thinking that law is objective. It also makes extremely clear why Meet the Momentum and other organizations have chosen to pursue the reforms they have.
The text in boxes provides helpful background and additional detail, but skipping the boxes will still give you a decent overview of the legal background of excessive use of force trials.
Understanding the legal actions that can be taken against police officers and who can take them starts with a baseline understanding of civil vs criminal law. Generally a crime is an offense against the state or society as whole. Crimes are usually specified in a state’s penal code (collection of all crimes and their consequences), and can result in jail time. Only the government can initiate criminal prosecution. Civil law generally covers disputes between private parties, like issues between a landlord and a tenant. A successful civil lawsuit will result in the defendant paying the plaintiff damages, but cannot lead to jail time for the defendant. One private party can bring a civil lawsuit against another.
Based on the police department’s internal investigation (see the "Independent investigation" page), the district attorney (DA) will decide whether or not to press criminal charges against the officer. A district attorney is a lawyer who represents the state government in criminal cases in their district. They are either elected or chosen by local government officials
When a shooting case is unfolding in the media, this is often the point at which articles will simply say “the DA’s office did not press charges,” and leave it at that. The immediate question that follows is: When exactly does the DA press charges?
The short answer is the DA presses charges when they think they can prove the officer broke a state law. States either have specific use of force statutes, in which case, the law is usually fairly clear and the DA need only decide if the officer broke it. Some states do not have a single written law about use of force in law enforcement, and instead rely on court precedent (past rulings on the subject) to define when officers can and cannot use lethal force. In this case, there is more of a gray area because instead of an explicit general rule, there are a number of examples which the DA must interpret to determine if the officer’s actions are in keeping with state law or not.
Up until around 1985, most states followed english common law in law enforcement officer use of force cases, a few followed the model penal code (an example criminal code published by the American Law Institute in the 1960s), and some had stricter laws. In 1985, supreme court case Tennessee v Garner established that the english common law standard for use of lethal force was unconstitutional. After that, more states shifted to a Garner model, either explicitly or through court precedent, but many remained with the old english common law or model penal code. This arrangement can be confusing, because one would think that an unconstitutional action by an officer would constitute breaking the law, but that is actually not the case.
The supreme court can strike down state laws that limit constitutional freedoms. For example, a state law against saying negative things about the president would be unconstitutional because of the first amendment right to free speech. However, the supreme court cannot require states to pass new laws that are as restrictive as the constitution. This means that the supreme court cannot force states to make it criminal for a police officer to use lethal force in scenarios not allowed by Garner. So while some uses of lethal force violate a citizen’s constitutional rights, they do not violate state criminal law.
Recall that the state can only press criminal charges if the officer violated state criminal law. The DA presses criminal charges only if the officer violated the state’s use of force laws, not if the officer violated federal court precedent for use of lethal force.
Basis for lawsuits against police officers
Separate from the criminal law space is the civil law space, explained in detail here. Conveniently, it’s actually possible to gain a surface-level understanding of most present-day use of force cases without all of that detail. Basically, when an officer tries to detain a civilian, it is considered a seizure of that person under the Fourth Amendment, which protects us from “unreasonable searches and seizures.”
Civil law surrounding use of force cases is best understood by working all the way up from the constitution. The United States Constitution establishes the three branches of the US government and their powers and lays out citizens’ rights on which the federal or state governments cannot infringe. The Bill of Rights, which is the first ten amendments and contains most of the main protections against citizens’ rights, initially did not apply to state governments. For example, in the early years of the United States’ existence, a state government could have passed laws limiting free speech, although state Bills of Rights did tend to reflect the federal Bill of Rights. It was not until the thirteenth amendment, which abolished slavery, was ratified in 1865, that any part of the constitution prevented state governments from passing laws which limited individual liberties. The fourteenth amendment, ratified in 1868, states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” This due process clause effectively applied most of the first ten amendments to state governments.
Until the mid 1900s, the main situation in which a citizen could stand up for his civil rights was if he had charges pressed against him based on a law that was unconstitutional. That person could potentially have charges against him dropped on the grounds that those charges infringed on his civil rights. In any context where a citizen was not defending himself from accusations of wrongdoing, a person’s ability to defend his civil rights was practically nonexistent. For example, there was no legal avenue for seeking damages from a police officer who unreasonably searched someone. In, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971), the supreme court ruled that an individual could bring a lawsuit against a federal agent who violated his or her civil rights. We won’t dig into Bivens here, since our main focus is on state laws. To fully understand these state laws, we must look back to the late 1860s and early 1870s.
The fourteenth amendment was followed in 1870 by the fifteenth amendment, which allowed Black people to vote. The thirteenth, fourteenth, and fifteenth amendments all include sections which specify that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Congress exercised that power with a series of civil rights acts. Of interest to this discussion is the 1871 Civil Rights Act, the first section of which created civil liability for state agents and some private parties who deprive citizens of civil rights. That section reads:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Breaking down the language is a fairly involved task, since its legal interpretation has shifted since the passage of the 1871 Civil Rights Act. Let’s start with what Section 1 of the 1871 Civil Rights Act (above) was supposed to do, identify the legal interpretations which prevented it from functioning as intended, and end with the shift in interpretation that brought us to the current day ability to sue police officers.
Lawmakers’ intentions in writing the 1871 Civil Rights Act are best understood in context of the political moment in which it was passed. The thirteenth, fourteenth, and fifteenth amendments were all passed during Reconstruction, when the government was attempting to adjust laws for a post Civil War America. Supreme Court Justice Harry A. Blackmun wrote “The specific goal of these amendments was to dismantle the legal framework of slavery and to guarantee freed slaves the same political rights enjoyed by their former masters.” He also concisely referred to their passage as a “constitutional assault on the Old South.” The three civil rights acts were passed to bolster the three new amendments.
The 1871 Civil Rights Act, also called the Ku Klux Klan Act, was an attempt by the federal government to defend Black people from the KKK. The KKK was powerful in the postwar South, and public officials were frequently unable or unwilling to oppose them. Law enforcement officers sometimes had ties to the KKK and either turned a blind eye to Klan violence or actively participated in it. The KKK would intimidate judges and trial witnesses, making it almost impossible to prosecute its members. The 1871 Civil Rights Act was meant to give victims of Klan violence the ability to bring a lawsuit to federal court, where they were more likely to receive a fair trial than in state courts. The most relevant sections of the 1871 Civil Rights Act to this discussion are the first and second, which made it possible to sue a government agent for deprivation of civil rights or a group of private citizens for conspiring to deprive someone’s civil rights, respectively.
While it is no longer relevant today, the third section of the 1871 Civil Rights Act played a pivotal role in the Reconstruction Era. The third section allowed the President to send armed forces into states to suppress domestic violence or conspiracies which deprived people of their civil rights and the state government couldn’t or wouldn’t defend those rights. That, along with the original second section, which made conspiring to deprive someone’s civil rights a crime, was integral to cracking down on the KKK. American historian Eric Foner wrote “By 1872, the federal government’s willingness to bring its legal and coercive authority to bear had broken the Klan’s back and produced a dramatic decline in violence throughout the South.” Various supreme court rulings stripped all three civil rights acts of much of their power, but the first section of the 1871 Act and the civil provisions of the second section remain intact under Title 42 Sections 1983 and 1985, respectively.
We have now identified what section 1 of the 1871 Civil Rights Act (from here on referred to as “Section 1983”) was supposed to do, and can now move on to the interpretation that initially prevented it from functioning as intended. The first sentence of Section 1983 says if anyone “under color of any statute” deprives another person of his or her rights, the first person is civilly liable to the second. Up until 1961, courts interpreted that phrase as meaning that a law enforcement officer was only liable if he or she deprived someone’s rights while enforcing state law and acting within the law themselves. So if an officer broke a law while depriving someone’s rights, he or she was no longer considered to be acting under color of law.
This interpretation changed with Monroe v. Pape (1961), in which the Supreme Court held that law enforcement officers were acting under color of law while carrying out their official duties, even if their actions broke state law. The Monroe ruling also established that citizens had the right to bring their case to federal court regardless of any potential state remedies. Thanks to Monroe, Americans in every state gained the ability to sue police officers in 1961, even though in theory, they had been able to do so since 1871.
Present day legal landscape
We’ve established how it became possible for citizens to sue law enforcement officers, and can move on to how a plaintiff establishes a violation of civil rights. The three key elements to excessive force cases are the Fourth Amendment, Tennessee v. Garner (1985), and Graham v. Connor (1989). To understand the role of the Fourth Amendment, we have to think back to above, when we established that the due process clause of the 14th Amendment “effectively applied the first ten amendments to state governments.” It was Wolf v. Colorado (1949) in which the Supreme Court ruled that fourth amendment rights applied in the states through the 14th amendment. So, lawsuits can be brought against state and local officials under section 1983 litigation when a citizen’s Fourth Amendment rights have been violated. The Fourth Amendment ensures “The right of the people to be secure… against unreasonable searches and seizures.” The vast majority of excessive force cases are claims that an officer unreasonably seized someone, ie, arrested someone in an unreasonable way.
A Fourth Amendment violation occurs when an officer seized a suspect with a use of force which was objectively unreasonable. The Supreme Court has established that an officer seized a person if “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,” a “reasonable person would have believed that he was not free to leave,” and so remained at the scene despite wishing to leave, or there was “a governmental termination of freedom of movement through means intentionally applied.”
Determining whether or not the officer’s use of force in performing the seizure was reasonable depends on standards established in Tennessee v. Garner and Graham v. Connor. We discussed Garner in the “criminal” section expansion above in the context of how supreme court rulings affect state law, but did so without much elaboration on the details of the Garner ruling. In its ruling, the court held that “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Basically, one scenario in which deadly force does not violate a suspect’s civil rights is if the suspect is likely violent and trying to escape. The logic there is that killing the suspect will prevent the serious physical harm of others.
The Graham v. Connor ruling laid out guidelines for use of force including but not limited to deadly force, like Garner was. The court held that in evaluating the reasonableness of an officer’s use of force, courts needed to examine “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham also elaborated on the reasonableness standard, stating that “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”
In the context of police shootings, these two cases effectively establish that a police officer can shoot a suspect without violating his civil rights if (1) a reasonable officer in that moment would have believed the suspect posed an immediate threat to anyone on the scene, or (2) a reasonable officer in that moment would have believed the suspect was violent and attempting to escape. Let’s combine this conclusion with the fact that state law frequently lines up fairly closely with federal law. The result is that the vast majority of police shooting trials, criminal and civil alike, go something like this: officer shoots someone; officer says that person was reaching for his waistband, had an object in his hand, or took a step towards the officer; officer says he believed his life was in danger; jury says that seems reasonable; officer escapes charges or damages.
The issue with this law is determining the characteristics of Graham’s hypothetical “reasonable officer” in a world where police officers carry biases, implicit or explicit. A police officer with biases against Black people is much more likely to see a Black person’s actions as threatening. To a jury with similar biases, the officer’s actions will appear reasonable. This reality means that even when a jury is randomly selected (which juries are supposed to be), they are likely to favor a white police officer over a Black plaintiff. On top of that, manipulation of the process can make it almost impossible for minority plaintiffs to be judged fairly. John Oliver gives a thorough explanation of corruption in jury selection if you want to learn more. Leeway in the legal system is necessary for equitable application of laws, as they leave space for judgement of the particular circumstances of each case. It is impossible to make blanket rules that make sense for every possible case, which is why we have judges and juries to interpret how general laws should be applied specifically to each case. The issue here is that human judgement in law can result in applying the law to specific cases unjustly.
The purpose of this page is to:
(a) provide a comprehensive review of the legal history of law enforcement officers violating citizens’ civil rights;
(b) conclude that human judgement is necessary for equitable application of laws, but human judgements are influenced by implicit biases, which leads to Black people being treated unjustly; and
(c) recognize through the process of reaching that conclusion why advocating for achievable, common-sense reforms is an efficient avenue for mitigating a problem that we are not currently equipped to eliminate in one fell swoop.
We can’t force judges and jurors to think certain ways, and it is actually quite difficult to alter existing laws to eliminate the effects of racism on use of force trials. However, it is important to remember that the ultimate goal is ending racist police violence, not just convicting officers who commit it. Legal accountability is just one piece of the excessive force puzzle; there are common-sense and easily legislated ways to drastically decrease the frequency with which officers use excessive force. But, fair trials of course have a crucial role to play as well. Here, too, there are relatively straightforward ways to edge out the effects of racial bias on trials. Those reforms should provide the time and environment necessary for more nuanced legislation and court precedent which can eventually eliminate the seemingly inescapable hold of racial bias on trials described here.