by Paul Butler
Intermediate Weapons
Lethal Force
San Diego, California
Deputy Presence
Verbal Direction
Soft-Hand Control
Chemical Agents
Hard-Hand Control
Intermediate Weapons
Lethal Force8
We know, based on the stories of African American men, that police use these methods all the time. We know from the data that most of these methods are more likely to be used against black men. We even have specific information from the relatively few cities including Houston and New York that collect and release this information to the public, as shown in Figures 4 and 5:
FIGURE 4: USE OF FORCE IN ALL TYPES OF POLICE ENCOUNTERS, ACCORDING TO CIVILIANS
Blacks are more likely than whites to be the target of non-deadly force by police.
Source: Roland G. Fryer Jr., “An Empirical Analysis of Racial Differences in Police Use of Force,” National Bureau of Economic Research Working Paper No. 22399 (July 2016).
FIGURE 5: FOR EVERY 10,000 STOPS THEY MAKE, POLICE OFFICERS IN NEW YORK . . .
New York police officers use coercive tactics against blacks more than whites.
Source: New York Police Department, “Stop, Question and Frisk Report Database,” www.nyc.gov/html/nypd/html/analysis_and_planning/stop_question_and_frisk_report.shtml.
But exactly how often, on a national basis, we don’t know, even for the most severe use of force—police shootings.
The information about itself that a society collects—and does not collect—is always revealing about the values of that society. We know, as we should, exactly how many police officers are killed in the line of duty. But we do not know, as we should, exactly how many civilians are killed by the police.
•Number of police officers killed in the line of duty in 2015: 949
•Number of civilians killed by police officers in 2015:? Estimates include 991 (Washington Post10) and 1,146 (The Guardian11)
The Washington Post estimates that African Americans are 2.5 times more likely to be killed by police than whites.12 The reason that we don’t have firm numbers on the number of people U.S. police departments kill is because that information is not required to be made public. Of course police departments themselves know exactly how many people their officers have killed. It’s just that most departments do not have to tell anybody else.
Police departments could be forced to share this information. The president, Congress, state lawmakers, and city mayors all have ways of requiring data about police shootings to be made transparent.13 But in general government officials do not seem to think the public needs to know how many people our law enforcement officers—public servants paid by tax dollars—kill every year.
Fortunately, some police departments have voluntarily provided information about use of force, and others have been ordered to do so by courts, usually after those police departments have been sued for excessive force. Here’s data from some cities:
Philadelphia 2007–2013:
Total Officer-Involved Shootings: 364
Black Suspects: 291 (80 percent)
White Suspects: 33 (9 percent)
Hispanic Suspects: 36 (10 percent)
Asian Suspects: 4 (1 percent)14
New York City 2009–2013
Total Officer-Involved Shootings Resulting in Death: 53
Black Suspects: 28 (53 percent)
White Suspects: 8 (15 percent)
Hispanic Suspects: 15 (28 percent)
Asian Suspects: 2 (4 percent)15
Los Angeles 2010–2012 (includes ALL use-of-force incidents)
Total Use-of-Force Incidents by Police: 6,062
Black Suspects: 2,074 (34 percent)
White Suspects: 1,077 (18 percent)
Hispanic Suspects: 2,837 (46 percent)
Asian Suspects: 74 (1 percent)16
Police brutality is so widespread, and so predictable, that many small and medium-size cities actually purchase insurance policies to pay money to people who have been subject to police abuse.17 Big cities, however, self-insure, which means they set aside a certain amount of money to be used for this purpose. This raises an issue scholars call moral hazard, since police departments might be less likely to encourage their officers to act responsibly because paying for brutality is already included in the budget. John Rappaport, a law professor at the University of Chicago, has suggested that insurers could play a valuable role in reducing police violence. Insurers make money when they don’t have to pay out misconduct claims, and this provides them with an incentive to keep cops on the straight and narrow. Some insurers have encouraged police to adopt use-of-force continuums and provided written and video materials for officers to learn about appropriate uses of force.18 Some insurers have even conducted psychological testing to ensure that officers are capable of adequate self-control.19 In California, local cops were forced to implement a series of reforms after an insurer threatened to revoke coverage.20 Still, the prevalence of misconduct insurance suggests police are well aware of systemic deficiencies and would rather pay their costs than address them head on.
It doesn’t have to be this way. Other countries enforce their laws and are just as safe as the United States, but their police officers kill far fewer people, as shown in Table 3.
TABLE 3: COMPARING FATAL POLICE SHOOTINGS IN THE U.S. AND OTHER COUNTRIES
Police officers in the United States kill more people in a matter of days than do police officers in other countries over the course of a year.
Source: Jamiles Lartey, “By the Numbers: US Police Kill More in Days than Other Countries Do In Years,” The Guardian, June 9, 2015.
THE SUPER POWERS OF THE AMERICAN COP
What’s the difference? The widespread availability of guns is a major factor. U.S. cops are allowed to shoot to kill if they reasonably believe that someone is about to shoot them, and police in the United States probably face deadly force more than cops in some other countries. But that is not the whole, or perhaps the most important, explanation. Many Canadian citizens own guns—in Canada, there are about thirty guns for every one hundred people (versus eighty-eight for every one hundred people in the United States), yet more people die from police violence in one week in the States than in one year in Canada.21
Another important difference is that U.S. police officers have super powers that cops in those other countries do not. The Chokehold authorizes them to take out their guns a lot more. The police have been granted these powers in a series of court rulings from the United States Supreme Court, including Scott v. Harris, Atwater v. Lago Vista, and Whren v. United States. With its decisions in these cases, the Court has created the legal platform for black lives not to matter to the police.
These cases are not the first time the Supreme Court has used its power over the criminal justice system to make a point about race. Michael Klarman, a professor at Harvard Law School, wrote a famous law journal article about how, in the early twentieth century, the Court granted criminal defendants new rights because it was concerned that African Americans were being discriminated against in the South. For example, in a case involving the Scottsboro “boys”—nine African American men who were falsely accused of raping two white women—the Court ruled that people who are charged with capital crimes have a right to an attorney. Professor Klarman argues that the Court was using criminal justice to try to install a new racial order in the South. He also states that, in doing so, the Court was not really going out on a limb. It was just reflecting the views of most Americans that southern prejudice against blacks was too extreme.
The Supreme Court is still using the criminal justice system to do race work, except that now it is imposing a different racial order. In a series of cases, the conservatives on the Court have given the police unprecedented power, with everybody understanding that these powers will mainly be used against African Americans and Latinos. Once again, the Court is just reflecting the will of the (white) majori
ty. Many people are afraid of African American men, and the Court has authorized police procedures to contain the perceived threat. Three recent cases are instructive.
SCOTT V. HARRIS: SUPER POWER TO KILL
Victor Harris was nineteen years old when the police tried to pull over his car in Atlanta, Georgia, for speeding. He was going 73 mph in a 55 mph zone. Harris should have stopped but instead he sped away. The officers gave chase and pursued Harris down a two-lane highway for several minutes. Finally one of the cops used his car to deliberately ram Harris’s car off the road. It crashed down a steep ravine and burst into flames. Harris survived, but he was rendered a quadriplegic.
Are the police allowed to use deadly force simply to enforce a traffic law? If they have to choose between letting somebody get away with speeding or killing or maiming him to make sure he doesn’t get away, are they really supposed to kill or maim him? Those questions made it all the way up to the United States Supreme Court, which answered “yes.” The police could have ended the danger simply by stopping the chase. They already had Harris’s license plate number, so they could identify and find him. Yet the Court ruled that the police had acted reasonably because Harris’s evasion of the police created a danger to other drivers.
The police originally tried to stop Victor Harris for speeding, a traffic infraction. We don’t know whether they were going to give him a ticket or arrest him—in many cities, the police have either option. Why are the police even allowed to arrest someone for a traffic infraction—as opposed to giving him or her a ticket?
ATWATER V. LAGO VISTA: SUPER POWER TO ARREST
Gail Atwater found out the answer to that question the hard way. She was driving her pickup truck in Lago Vista, Texas. Her two kids were in the backseat and nobody was wearing a seat belt. Texas has a mandatory seat belt law, and Officer Bart Turek pulled her over, jabbed his finger at her face, and told her she was going to jail. The officer put handcuffs on Atwater, placed her in the back of his squad car (the cop didn’t put a seat belt on Ms. Atwater!), and took her to jail. At the station she was searched, had her mug shot taken, and then was locked up for an hour until she made bail.
Here’s the kicker: in Texas, under the law, this is not an offense punishable by being sent to prison. If you are guilty of driving without a seat belt, the maximum punishment is a fifty-dollar fine. Atwater thought, not unreasonably, you should not be able to be arrested and put in jail for an offense for which you could not be locked up when you are found guilty of it. But the Supreme Court did not agree. It said that the police can take you to jail in the course of processing you for any crime—no matter how minor and even if punishment for being found guilty of the crime does not include any prison time.
WHREN V. UNITED STATES: SUPER POWER TO RACIALLY PROFILE
Did you know the cops can stop you for waiting too long at a stop sign? That’s one of the reasons they stopped Michael Whren, a young black man driving a car in Washington, D.C. The car stayed at the stop sign for about twenty seconds and then made a quick right turn without signaling. At that point police officers in an unmarked car pursued Mr. Whren’s vehicle and pulled him over.
There was no serious claim that the officers were concerned about the traffic violations. They just wanted an excuse to stop the car to see what was going on with Mr. Whren and his passenger. That’s called a pretextual stop—the pretext is the traffic violation, but it’s not the real reason why the cops are stopping you.
In Whren v. United States, the Supreme Court blessed this kind of police activity. As long as the cops have a legitimate reason, like a traffic violation, to make the stop, it’s all good. The actual motive of the cop, what the Court called his or her “subjective state of mind,” does not matter.
A cop friend of mine invented a game that tells you everything you need to know about the extraordinary consequences of Whren. The cop takes my law students on ride-alongs in his squad car so they can see what it’s like to be a police officer. The game is called Pick a Car. My friend tells the students to pick any car they see on the street and he will legally stop it. He says that he can follow any driver and within a few blocks he or she will commit some traffic infraction. Then he turns on his siren and flashing lights. He can order the driver and passenger to exit their vehicle. He can pat them down if he feels like his safety is threatened. This gives him an enormous amount of power. As a practical matter, if you are driving a car, he can stop you at will.
This is exactly what the police do to African Americans and Hispanics. Study after study has found that there is a lower threshold for minorities than white people when it comes to traffic stops. Stanford University researchers looked at 4.5 million traffic stops in North Carolina and found that, though they are searched at higher rates than whites, African Americans and Hispanics possess contraband at lower rates than whites do.22 To put this gap in perspective, had black drivers been searched at the same rate as white drivers, thirty thousand searches, or a third of all searches of black drivers over a six-year period, would not have occurred.23 Similarly, had Hispanic drivers been searched at the same rate as white drivers, more than half of the total searches of Hispanic drivers would not have taken place.24
Because of these super powers, New York City police officers were able to arrest Eric Garner in Staten Island, New York, for selling a “loosie” cigarette, a minor infraction akin to not wearing a seat belt. Then the police could use deadly force when Garner resisted arrest, if they reasonably believed he posed a threat to them or others. They put him in a chokehold, which killed him. The chokehold was against NYPD regulations but not against the U.S. Constitution. After all, in Scott v. Harris the police were permitted to deliberately ram a car down a steep ravine to enforce the law against speeding. These super powers enabled the Ferguson, Missouri, police to stop Michael Brown for “manner of walking in the roadway.” If, in making the arrest, Officer Wilson reasonably feared for his life, he was allowed to shoot Brown dead, which is what Officer Wilson did.
The super powers allowed the Ferguson police to arrest another man named Michael simply because he told them his name was “Mike.” And when a woman called the police because her boyfriend had assaulted her, these super powers allowed the police to arrest the woman for “permit violation.” It’s all legal. When the police treat black people like this, they are just doing their jobs. U.S. Supreme Court Justice Sonia Sotomayor, dissenting in another pro–police power case, wrote that the majority opinion told “everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”25
WHY ARRESTS ARE A BIGGER PROBLEM THAN INCARCERATION
Thanks to the powerful analysis in Michelle Alexander’s groundbreaking book The New Jim Crow, there’s been a lot of focus on incarceration as a form of social control of African Americans. But it turns out arrests, which precede incarceration, are an even bigger deal. That’s because for most kinds of arrests—for low-level crimes called misdemeanors—police and prosecutors don’t care really whether you are guilty. That’s not the point of the arrest. African American men are arrested mainly so that they can be officially placed under government surveillance. Table 4 shows these arrests broken down by race.
TABLE 4: ARRESTS IN 2012 BY RACE
Blacks are arrested disproportionately more than other racial and ethnic groups in the United States.
Sources: Arrest Data Analysis Tool, BoJ (available at www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm#); Brame, Bushway, Paternoster, and Turner, “Demographic Patterns of Cumulative Arrest Prevalence by Ages 18 and 23,” Crime & Delinquency 60, no. 3 (January 6, 2014), cad.sagepub.com/content/60/3/471.
You may be thinking the fact that so many black men get arrested is proof that they are more dangerous. Here’s why that’s wrong. The vast m
ajority of arrests are for misdemeanors—minor crimes for which the punishment is less than one year in prison. Only one out of twenty-four arrests in the United States is for a violent crime. In an article in the Georgetown Law Journal, law professor Devon Carbado listed some of the conduct that states punish as misdemeanors:
•Spitting in public places;
•Possession of spoons, bowls, and blenders (as indicative of drug paraphernalia);
•Loitering for illicit purposes;
•Selling alcohol to a “common drunkard”;
•Public intoxication;
•Sleeping in a public place;
•Sitting or lying down in particular public places;
•Camping or lodging in a public place;
•Panhandling anywhere in the city;
•Storing personal property in a public place without a permit;
•Drinking in public;
•Jaywalking;
•Riding bicycles on the sidewalk;
•Removing trash from a bin;
•Urinating or defecating in public.26
The hard stare is the main reason why more African American men get locked up for those crimes. If the police spent as much time staring at any other group as they do at black men, that group would be under arrest just as much as black men are. Imagine if you had your own personal cop, watching you every time you left the house, from the time you were ten years old. What if you were subject to intense government surveillance any time you jaywalked, littered, got into a fistfight, smoked a joint, or committed a traffic infraction? The National Longitudinal Survey of Youth surveyed people who turned eighteen years old in 1980 and then looked at the same age group in 2000. The survey asked the youth questions about contacts with the criminal justice system, and also about actual involvement in criminal activity. In 1980, African Americans and whites who reported that they broke the law were arrested at around the same rates. And blacks and whites who reported that they obeyed the law were not arrested at roughly equivalent rates.