The video is no less horrifying for being familiar: a young black man surrounded by about 20 police officers, nearly all of them white, being beaten while offering no resistance. Tyree Carroll had been biking to his grandmother’s home in northwest Philadelphia late one April night when officers stopped him on suspicion of narcotics possession. What happened appears to be a textbook case of police brutality, at least according to the cellphone video of the incident released this month: a chokehold, repeated blows to the face and body, and hurled epithets. A bruised Carroll, the Philadelphia Police Department later said in a statement, was “transported to the hospital after intentionally striking his own head against the protective shield located in the police vehicle.”
The department promised an internal investigation, but has already labeled the use of force justified. The local district attorney, while bringing charges against Carroll for drug possession and assault, has deferred to the department’s assessment. That response underscores the chasm between how the public and the government view such incidents of violence.
Since Michael Brown was killed by officer Darren Wilson in Ferguson, Mo., last summer igniting the Black Lives Matter protests, a rising chorus of voices across the country has decried this contradiction — not just police violence, but also the continuing inability of the courts to curb it. Exacerbated by the growing use of military tactics and technology and defined by racial disparities, the term “excessive force” has become — for many— an expression of profound unfairness.
But what does excessive force mean? And who gets to define it?
Since 1989, the Supreme Court has held police to a standard of “objective reasonableness.” Although the test sounds straightforward, most observers say it is hard to apply even to a situation like the Carroll arrest. What looks objectively reasonable to a judge might be far different from what looks reasonable to a rookie officer or observer clicking through videos on YouTube.
What’s more, officers are rarely called to defend their conduct in court. Lawsuits for violations of the objective reasonableness standard are historically rare, as victims can seldom afford to bring a case, and police enjoy a variety of legal protections. In a recent instance, the city of New York this month agreed to pay the family of Eric Garner $5.9 million, while admitting no liability in his death. It came one year after Garner was held on the ground by a New York Police Department officer using what appeared to be a chokehold. Garner’s yells of “I can’t breathe!” became a rallying cry in antipolice rallies nationwide.
And while settlements are sometimes quietly paid out, criminal cases against police — where the objective reasonableness standard is used to assess whether an officer’s use of force amounted to assault or murder — are even rarer.
Darrell J. York, a private attorney in Los Angeles who served 24 years as a police officer and now represents victims of excessive force, says that occasional lawsuits aren’t nearly enough to make a systemwide difference. “Even with these big verdicts, you’re not seeing a decrease in the amount of shootings, you’re seeing an increase,” he said.
Although numbers can’t tell the whole story, only 54 officers have been prosecuted in the past decade for killing someone while on duty, a tiny fraction of the total number of such incidents, according to a recent study by The Washington Post and Bowling Green University. (An ongoing project by The Guardian newspaper estimates that there have been more than 600 police killings so far this year.)
Legal standards capture certain social realities. They adopt biases and worldviews, and they indicate the balance of interests that society is unable to resolve outside the courtroom. So, just what does excessive force stand for? It turns out that that term’s history, usage, and consequences can tell us much about the current policing crisis.
Even in an age of cellphone ubiquity, there’s often furious disagreement over what the images of police encounters actually depict. After a two-year legal battle, a federal judge in California last week ordered the release of police dashboard camera footage showing the shooting death of an unarmed man, Ricardo Diaz Zeferino. The judge rejected the city’s contention that its $4.7 million settlement with the family shielded the footage from release. The case shows that defining excessive force always involves more than saying who did what when; it requires an inquiry into the proper role of police in society.
But as critical as this question is today, it’s a surprisingly recent one.
Modern law enforcement is very new. For most of our history, ordinary citizens were expected to take turns patrolling in town watches; bigger towns employed constables, who were usually unarmed. Posses and vigilantes did most the work of apprehending criminals. It wasn’t until the middle of the 19th century that some cities began to organize professional police divisions.
This changed toward the end of the 1800s, with rapid urbanization and concerns about police corruption. A wave of reform measures created the police as we know them today: uniformed, hierarchical, and responsible to elected government.
Around the same time, the Civil War and Reconstruction prompted new protections for individual liberties. The Fourteenth Amendment prohibited states from depriving citizens of their constitutional rights. The Ku Klux Klan Act of 1871 allowed individuals to sue government officials, including police, who violated those rights.
But even as these developments seemed to clarify the rights of citizens, countercurrents were in motion. Many of the nation’s first police forces, like the Charleston City Guard, were created for the purpose of keeping slaves or free blacks in check. Meanwhile, the Supreme Court issued a series of opinions that confused or blocked the new civil rights push. “Separate but equal” became law of the land, and the court refused to hold local officers liable for brutality until well into the 20th century.
Without clear guidance about what sort of violence violated the Constitution, police were generally immune from oversight. In 1955, the Supreme Court of California summed up efforts to curb police brutality: “Reported cases involving civil actions against police officers are rare, and those involving successful criminal prosecutions against officers are nonexistent.”
These conflicting tendencies — official reforms and persistent racism, new rights and procedural limitations — locked the struggle against police brutality into a cycle of recurring crises. Many of our most well-known riots began with police violence: Watts in 1965, Newark in 1967, Los Angeles in 1992, Cincinnati in 2001. Periodic commissions have examined the problem: President Obama’s Task Force on 21st Century Policing, which recently examined the causes of unrest in Ferguson and elsewhere, is merely the latest.
The current, authoritative definition of excessive force has its origin in 1984, when a diabetic named Dethorne Graham suffered an insulin reaction in Charlotte, N.C. Graham asked a friend to drive him to a convenience store for orange juice. The line was too long, so Graham rushed out, arousing the suspicions of a police officer who pulled the pair over.
Graham was handcuffed, shoved, and beaten, passing in and out of consciousness as his pleas for medical aid were ignored. At the Supreme Court five years later, Graham argued that this behavior “shocked the conscience,” thus violating his constitutional rights.
Chief Justice Rehnquist didn’t think Graham was asking the right question. There is no “generic ‘right’ to be free from excessive force,” Rehnquist wrote. Instead, there are the enumerated rights of the Constitution, including the Fourth Amendment’s guarantee against unreasonable searches and seizures. Because Graham was being searched and seized that day in Charlotte, the appropriate test was simply whether the officers’ actions were unreasonable under the circumstances.
The so-called Graham test of objective reasonableness was meant to be an easy-to-apply rubric that would relieve courts of the burden of having to guess an officer’s motivation. The court advised judges to consider the “perspective of a reasonable officer on the scene, rather than . . . the 20/20 vision of hindsight.” Many plaintiffs’ lawyers thought the decision would help their clients win cases.
But in the face of unprecedented crime rates, many judges were reluctant to second-guess police on the street. (Even though the number of officers killed in the line of duty has been falling steadily since the 1970s.) In the years following Graham, it quickly became clear that the “perspective of a reasonable officer on the scene” usually saw any amount of force as reasonable. Victims found themselves unable to disprove officers’ arguments that they feared for their safety, and prosecutors were reluctant to bring criminal charges against officers.
Excessive force cases against police follow two paths through the courts. In criminal cases, a state district attorney’s office files assault or homicide charges against an officer and puts the case before a grand jury. But they are historically reluctant to indict officers, as the decisions following the deaths of Michael Brown and Eric Garner demonstrated.
In civil cases like the Graham litigation, victims file a lawsuit in federal court, alleging violations of their Fourth Amendment rights under the objective reasonableness standard. A recent analysis by the Wall Street Journal found that cities with the 10 largest police departments have paid out over a billion dollars in such cases in just the last five years, with costs increasing rapidly. But these are hard cases to bring and harder to win.
Jennifer Laurin, a professor at the University of Texas School of Law who specializes in police brutality doctrine, thinks that this weakness is built into our existing law. By embracing the objective reasonableness standard, the Graham court was “deliberately . . . putting a thumb on the scale for the official’s perspective,” Laurin says.
This resulted in two major failures of the law, according to Laurin. On the one hand, everyday police force, such as roughly pulling suspects’ hands behind their backs, become invisible to judicial scrutiny — leaving the law powerless to address one of the major causes of tense police-community relations. On the other hand, only officers who knowingly violate a victim’s rights — officers unreasonable enough to know their conduct is unconstitutional and do it anyway — can be found liable.
In May, a Cleveland judge considered the case of Officer Michael Brelo, who had been involved in a high-speed chase of two unarmed black suspects. After the suspects’ car was cornered and over 100 shots had been fired, Brelo mounted the hood of the car and fired 15 bullets at point-blank range. Because Brelo had thought the suspects might be armed, the judge ruled that his actions were “objectively reasonable.”
According to York, the cop turned attorney, officers on the street learn about the legal standard of excessive force in a few ways: Supreme Court cases are discussed at the academy, regular training highlights the relevant legal tests, and attorneys draft department guidelines. The Boston Police Department’s Rules and Procedures, for example, require officers to “use only that amount of force reasonably necessary to achieve their lawful purpose.”
That this test mostly favors police officers says less about the weakness of a single legal doctrine than it does about our entire system of law enforcement — a system whose incentives and interests are informed by political struggles over how best to fight crime.
The excessive force standard also captures some basic assumptions built into the way we think about police in our society. Rather than labeling all violence excessive, we assume that police use force reasonably, and ask victims to prove otherwise.
So, experts say, legal reforms will take us only so far. Rethinking our excessive force standards may make change easier, but that alone won’t produce it. As the report of the Task Force on 21st Century Policing notes, faith in law enforcement can only be secured when officers and civilians alike embrace the “sanctity of life.” The law may be a weapon or an obstacle in this struggle, but the battle itself will be fought elsewhere: on the street, in the station house, and in citizens’ hearts and minds.
Ted Hamilton is a student at Harvard Law School.