Why Police ‘Get Away With It’
Ruling in case from Charlotte set standard for police use of force
Charlotte-Mecklenburg Police Major Mike Campagna and activist Braxton Winston had a heated discussion outside CMPD headquarters in November, after the District Attorney announced no charges against the officer who shot and killed Keith Scott in September.
Charlotte-Mecklenburg Police officers practice use-of-force techniques at the department’s sprawling Training Academy off South Tryon Street, in a padded room of the type that high school wrestling teams use. On a recent Wednesday evening, CMPD Lieutenant Sean Mitchell prepared to demonstrate the department’s approved tactics to a group of eight citizens lined against one wall.
The citizens had signed up for one of CMPD’s Transparency Workshops, a series of three-day crash courses in police operations that began in January. They’re meant to help ordinary citizens better understand how police departments function—a trust-building effort that Chief Kerr Putney deemed necessary after the post-Keith Scott unrest in September. Before he demonstrated leg sweeps and other control techniques, Mitchell delivered a brief legal lesson.
“The thing that I think is very important that you understand is that we derive our ability to do what we do from a court case that was decided actually from Charlotte,” Mitchell told the group. “It’s Graham versus Connor.”
Any jury acquittal of a police officer charged in someone’s death is met, especially nowadays, with astonished outrage from family members and the public. "I will continue to say ‘murder’ because where in this planet do you tell the truth and you be honest and you still be murdered by the police of Minnesota?,” Valerie Castile, the mother of Philando Castile, said at a news conference last week after a jury acquitted the officer who shot him.
A big part of the answer lies in Graham v. Connor. The 1989 U.S. Supreme Court ruling in the case—which emerged from a suspected robbery in west Charlotte nearly 33 years ago—enshrined as legal precedent the idea that a police officer can use even lethal force based on perception, and that a prosecutor, judge, or jury can clear the officer of criminal charges on that basis.
On the early afternoon of Monday, November 12, 1984, 39-year-old diabetic Dethorne Graham felt an insulin reaction coming on. Graham, an N.C. Department of Transportation maintenance worker, asked a friend to drive him to a Pilot convenience store on West Boulevard so he could buy orange juice, a source of glucose to boost his blood sugar. He ran in, saw how long the line was, ran back out, and got back into his friend’s car. “Officer (Marion) Connor pulls the car over,” Mitchell explained to the group at the transparency workshop. “He thought that was suspicious; maybe there was a robbery.”
Graham, a black man, got out of the passenger’s side, ran twice around the car, then sat on the curb and briefly passed out. Graham’s friend explained that he was having a “sugar reaction.” But Connor, who didn’t know what was happening, called for backup. One of the other officers rolled Graham over on the sidewalk and cuffed him tightly, cutting into Graham’s wrists. Another officer remarked, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the motherfucker but drunk. Lock the son of a bitch up.”
The cops carried Graham to his friend’s car and put him face down on the hood. Graham asked the officers to check his wallet for a diabetic decal he carried; one of them told him to shut up and shoved his face into the hood of the car. Graham later testified that four officers threw him head first, “like a bag of potatoes,” into one of the police cars.
Then Connor, who was also black, learned that Graham hadn’t taken anything from the store, and the officers drove him home and released him. Graham had suffered a broken foot and some minor injuries to his wrists, forehead, and shoulder, plus ringing in his ears that persisted for years after the incident. (He died in 2000.) Graham sued for damages, alleging among other things that the officers’ actions violated his Fourth Amendment protection against “unreasonable searches and seizures.”
The case made its way to the U.S. Supreme Court, which ruled on May 15, 1989. The ruling established the standard for judging police use of force to this day. Chief Justice William Rehnquist, writing for the majority, held that any claim of excessive force against law enforcement had to be weighed against an “objective reasonableness” standard:
The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
Rehnquist added that Fourth Amendment case law “has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion,” and that it’s impossible to precisely define or apply a specific definition of “reasonableness”—leaving judges and juries to determine what that is in each case. He also made plain that the standard had to apply to the circumstances that existed at the moment of use of force, not—in a phrase now famous in legal and police circles—“with the 20/20 vision of hindsight.”
“The Supreme Court was pretty clear and said that (police) won’t be judged in hindsight on what we know now, but on what a reasonable officer would assume was occurring at that moment,” Lieutenant Mitchell told the Transparency Workshop group as he wrapped up his mini-lecture. “(Graham) didn’t commit a crime, right? But the officer didn’t know that then. That’s the standard we work under now.”
For good reason, the law gives police officers wider latitude than the rest of us in determining the level of a threat and the force needed to end it. In general terms, officers are authorized to use lethal force when they perceive an imminent threat of serious injury or death to themselves or others. That’s the rule CMPD and police departments across the country use, along with a “use of force continuum” that serves as a guideline for the level of force that’s appropriate to meet different kinds of threats.
But no set of rules can account for every situation, and no police training program, no matter how extensive, can prepare an officer fully for a call that might require use of force. A week after Lieutenant Mitchell’s demonstrations in the training room, another member of the CMPD training staff, Captain Rob Dance, explained to the Transparency Workshop class what happens when officers respond to those calls: Their heart rate doubles from a massive adrenaline dump, the brain’s natural reaction to a high-stress situation. Their vision constricts. Fine motor skills abandon them. “And you’re not going to know the whole story until after it’s done,” Dance told the group. “Do you see how complex this is?”
That’s another complication of the “objective reasonableness” standard: It has to apply to a situation in which a cop has to struggle mightily to be objective or reasonable. It creates what seems like a grossly unjust imbalance. “We live in a world where trained police officers can panic and act on impulse, but untrained civilians have to remain calm with a gun in their face to avoid being murdered,” Steve Stoute, the black CEO of a New York advertising agency, said in an interview last year. The standard also doesn’t address implicit bias, an unconscious prejudice against particular groups or classes; several recent studies have shown that police are more likely to stop and to use force against black people. (CMPD began implicit bias training for officers last August, a few weeks before the Keith Scott shooting.)
But “reasonableness” remains the standard. It applied to the non-indictment of Officer Darren Wilson in the shooting death of Michael Brown in Ferguson, Missouri, in 2014. It applied to the acquittal of Jeronimo Yanez, the officer in the Philando Castile case. And it applied to the hung jury in the Randall Kerrick case in Charlotte two years ago, when the former CMPD officer related in a shaky voice his justification for shooting and killing Jonathan Ferrell in 2013: “I thought I was going to die.”
That Ferrell was unarmed, and that his motives were unclear when he ran in Kerrick’s direction that night, are irrelevant to whether Kerrick’s decision to shoot him 10 times was “objectively reasonable” under the Graham v. Connor standard. Kerrick had no way to know what Ferrell would do at that moment. Jurors were instructed to take that into account. Of course, as a police officer on trial for killing someone, Kerrick could express his view of the incident to the jury, an option forever closed to Ferrell.
This week, I spoke with Ken Wallentine, a Salt Lake City-based use of force expert who trains officers for the Utah Attorney General’s Office. He told me that the Graham case, while an important factor in excessive force trials, isn’t the sole determinant. “That’s not the only evidence that gets presented to the jury,” Wallentine said. “To say that the Constitutional standard of Graham made it harder to convict an officer, while superficially accurate, doesn’t account for the fact that we’re dealing with a system in which it’s hard to convict anybody, and the defendant is someone who seems to be not imbued with criminal intent.”
That’s true as far as it goes, and it echoes a common line among police: Cops don’t start their shifts wanting to shoot somebody. That’s surely true, too. But it’s only part of the point. The absence of malice might satisfy a legal standard. But the explanation is wearing thin with people like Valerie Castile, who doesn’t want to know or care about the case law that allowed the cop who killed her son to walk free.
Toward the end of the Transparency Workshop session, Major Mike Campagna, who oversees the program, explained that the department isn’t trying to change anyone’s minds about police use of force or police in general. CMPD just wants to introduce people to another perspective that might inform their thoughts and actions the next time an officer kills or injures someone in the line of duty. ”When it happens,” Campagna added, “and it’s going to happen, and it’s going to happen in Charlotte.”
Addendum: I just got off the phone with Edward “Woody” Connette, the Charlotte lawyer who represented Graham in his initial trial in U.S. District Court in 1986. The judge in the case, Robert Potter—interestingly, the same judge who would 13 years later order the end of Charlotte’s school busing program, another judicial decision with profound consequences—threw out Graham’s suit, ruling that he failed to prove malicious intent on the officers’ part.
When the Supreme Court ruled in 1989, Connette said, the only issue was the standard by which the officers’ use of force should be judged; justices actually ruled in favor of Graham, whose appellate lawyers argued that malicious intent was an unfair, even impossible, standard for plaintiffs in use-of-force cases to meet. Justices ordered a new District Court trial taking the new “objective reasonableness” standard into account—and Graham lost.
Connette added that the recent string of police shootings of black men, and subsequent acquittals and hung juries in officers’ trials, troubles him. It’s even harder, he said, to imagine an appropriate alternate standard that doesn’t hinder cops’ ability to use force against threats that turn out to be genuine: “I’m just coming up empty on that front.”