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Introduction INTRODUCTION The deaths of Michael Brown and Eric Garner, two unarmed Afri- can American men killed by white police officers in the summer of 2014, and the subsequent nonindictments of the officers who killed them, have ignited a firestorm of responses, many engaging with and critiquing the law of policing.1 On August 9, 2014, Officer Darren Wilson shot Michael Brown, an eighteen-year-old resident of Ferguson, Missouri, at least six times, resulting in Brown’s death.2 In the imme- diate aftermath, protests, and then riots, swept the streets of Fergu- son3 — resulting in confrontations with the local police that in turn precipitated public debates on police militarization,4 as well as ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 Defining what constitutes “the law of policing” is more challenging than it may seem. Cf. Seth W. Stoughton, The Incidental Regulation of Policing, 98 MINN. L. REV. 2179, 2180–81 (2014) (“A small but growing cadre of scholars have begun [to recognize] . that ‘the law of the police’ is broader than conventional accounts acknowledge.”). For the purposes of these Chap- ters, the following suffices: there are legal frameworks and adjudicatory systems in place that col- lectively enable or limit an officer’s discretion to initiate interactions with citizens and that define how she, and the citizens with whom she interacts, can and must act. Such a definition, if imper- fect, is sufficient to unify the following Chapters around a singular explicative project. 2 Larry Buchanan et al., What Happened in Ferguson?, N.Y. TIMES (Nov. 25, 2014), h t t p : / / w w w . n y t i m e s . c o m / i n t e r a c t i v e / 2 0 1 4 / 0 8 / 1 3 / u s / f e r g u s o n - m i s s o u r i - t o w n - u n d e r - s i e g e - a f t e r - police-shooting.html. The circumstances surrounding this altercation were not immediately, and in some respects are still not, clear: In a press conference one week after Brown’s death, Ferguson Police Chief Thomas Jackson stated that Officer Wilson had confronted Brown because he was walking in the middle of the street and “blocking traffic.” Hours later, Chief Jackson amended this account, stating that the officer had initially stopped Brown for this reason but subsequently recognized him as a suspect in a robbery. See Yamiche Alcindor et al., Chief: Officer Noticed Brown Carrying Suspected Stolen Cigars, USA TODAY (Aug. 15, 2014, 9:50 PM), h t t p : / / w w w . u s a t o d a y . c o m / s t o r y / n e w s / u s a n o w / 2 0 1 4 / 0 8 / 1 5 / f e r g u s o n - m i s s o u r i - p o l i c e - m i c h a e l - b r o w n -shooting/14098369 [http://perma.cc/835K-XLCJ]. Officer Wilson later testified that Brown had reached for the officer’s gun through the patrol car window, and when the officer exited the vehi- cle, Brown had charged him. Some witnesses corroborated the officer’s account; others contra- dicted it. See Buchanan et al., supra. The Department of Justice conducted its own investigation into whether Officer Wilson had violated Brown’s civil rights, ultimately deciding not to bring charges against the officer. See Matt Apuzzo & Erik Eckholm, Darren Wilson is Cleared of Rights Violations in Ferguson Shooting, N.Y. TIMES (Mar. 4, 2015), http://www.nytimes.com/2015/03/05 / u s / d a r r e n - w i l s o n - i s - c l e a r e d - o f - r i g h t s - v i o l a t i o n s - i n - f e r g u s o n - s h o o t i n g . h t m l; but see also Matt Apuzzo, Ferguson Police Routinely Violate Rights of Blacks, Justice Dept. Finds, N.Y. TIMES (Mar. 3, 2015), h t t p : / / w w w . n y t i m e s . c o m / 2 0 1 5 / 0 3 / 0 4 / u s / j u s t i c e - d e p a r t m e n t - f i n d s - p a t t e r n - o f -police-bias-and-excessive-force-in-ferguson.html (describing a Department of Justice report re- leased on the same day finding systematic racial bias in the Ferguson police department). 3 See Buchanan et al., supra note 2; Looting Erupts After Vigil for Slain Missouri Teen Mi- chael Brown, NBC NEWS (Aug. 11, 2014), h t t p : / / w w w . n b c n e w s . c o m / s t o r y l i n e / m i c h a e l - b r o w n -shooting/looting-erupts-after-vigil-slain-missouri-teen-michael-brown-n177426. 4 See Julie Bosman & Matt Apuzzo, In Wake of Clashes, Calls to Demilitarize Police, N.Y. TIMES (Aug. 14, 2014), h t t p : / / w w w . n y t i m e s . c o m / 2 0 1 4 / 0 8 / 1 5 / u s / f e r g u s o n - m i s s o u r i - i n - w a k e - o f -clashes-calls-to-demilitarize-police.html. 1707 1708 HARVARD LAW REVIEW [Vol. 128:1706 comparisons to the civil rights movement.5 On November 24, as President Obama publicly called for a peaceful response,6 a grand jury in St. Louis announced its decision not to indict Officer Wilson, reigniting tensions on the Ferguson streets.7 Nine days later, a grand jury in New York decided not to indict Of- ficer Daniel Pantaleo for his involvement in the death of Eric Garner, a forty-three-year-old African American man killed during a street-corner arrest in Staten Island in July.8 A bystander had taken footage of Officer Pantaleo appearing to put Garner in an illegal chokehold, as well as taped his final words, “I can’t breathe.”9 Pro- tests following the nonindictment quickly spread beyond Staten Island to Manhattan,10 spawning national discussions about accountability structures governing officer misconduct11 and renewed critiques of the increasing breadth of the criminal law.12 This protest movement — in concert with that in Ferguson — quickly attained national scope.13 Politicians from both parties responded with calls for policing re- forms;14 debates erupted on social media platforms15 and engulfed ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 5 See, e.g., Dani McClain, The Civil Rights Movement Came Out of a Moment Like This One, THE NATION (Dec. 4, 2014, 5:47 PM), h t t p : / / w w w . t h e n a t i o n . c o m / b l o g / 1 9 1 9 6 9 / c i v i l - r i g h t s -movement-came-out-moment-one [http://perma.cc/Y9ZE-A3PB]. 6 Matt Berman, Obama Speaks on the Ferguson Decision, NAT’L J. (Nov. 24, 2014), http:// w w w . n a t i o n a l j o u r n a l . c o m / w h i t e - h o u s e / o b a m a - s p e a k s - o n - t h e - f e r g u s o n - d e c i s i o n - 2 0 1 4 1 1 2 4 [http:// perma.cc/G4RW-5RCV]. 7 See id. 8 Timeline: Eric Garner Death, NBC N.Y. (Dec. 5, 2014, 9:44 AM), http://www.nbcnewyork . c o m / n e w s / l o ca l / T i m e l i n e - E r i c - G a r n e r - C h o k e h o l d - D e a t h - A r r e s t - N Y P D - G r a n d - J u r y - N o -Indictment-284657081.html [http://perma.cc/W8KJ-KRAA]. 9 Id. 10 J. David Goodman & Al Baker, Wave of Protests After Grand Jury Doesn’t Indict Officer in Eric Garner Chokehold Case, N.Y. TIMES (Dec. 3, 2014), h t t p : / / w w w . n y t i m e s . c o m / 2 0 1 4 / 1 2 / 0 4 / n y r e g i o n / g r a n d - j u r y - s a i d - t o - b r i n g - n o - c h a r g e s - i n - s t a t e n - i s l a n d - c h o k e h o l d - d e a t h - o f - e r i c - g a r n e r .html. 11 See, e.g., James C. McKinley Jr. & Al Baker, Grand Jury System, with Exceptions, Favors the Police in Fatalities, N.Y. TIMES (Dec. 7, 2014), h t t p : / / w w w . n y t i m e s . c o m / 2 0 1 4 / 1 2 / 0 8 / n y r e g i o n /grand-juries-seldom-charge-police-officers-in-fatal-actions.html. 12 See Stephen L. Carter, Law Puts Us All in Same Danger as Eric Garner, BLOOMBERG VIEW (Dec.
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