Out of Breath and Down to the Wire: a Call for Constitution-Focused Police

Home , Death of Freddie Gray, Killing of Tamir Rice

37050-how_59-1 Sheet No. 6 Side A 02/15/2016 09:02:40 R R R R R R R R R R R R R R R 5 ...... 12 ...... 14 ...... 24 ...... 24 ...... 14 ...... 19 * ...... 18 ...... 16 ...... 29 ...... 30 ARCUS ...... 15 C. M ...... 21 ANCY ...... 12 N Police Reform ...... 29 and Recommendations Subsequent DOJ Investigation of the Ferguson Police Department 1. White House Initiatives 2. The Department of Justice Settlements, Reports 2. The Death of Michael Brown and the 3. The Death of 4.Tamir Rice The Death of 5.Walter Scott The Death of Samuel DuBose 1. The Death of John Crawford, III Proposals The Deaths of Eric Garner and Eric Harris Child) Between July 2014 and July 2015 A Call for Constitution-Focused PRE-FERGUSON “I CAN’T BREATHE” TO “FUCK YOUR BREATH” AND BEYOND A. The Dawn of a New Reform B.Movement An Overview of Recent Reform Measures and A. From “I Can’t Breathe” to “Fuck Your Breath”: B. Other Police Killings of Unarmed Black Men (and a Out of Breath and Down to the Wire: I. A BREATHTAKING SNAPSHOT IN TIME: FROM * Nancy C. Marcus, LL.M., S.J.D., is an assistant professor of law, and founding constitu- II. THE BIGGER PICTURE OF POLICE BRUTALITY III. REMEDIAL STEPS SINCE FERGUSON M K 2015 Vol. 59 No. 1 INTRODUCTION (THE DEATH OF FREDDIE GRAY) . . . 6 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 1 10-FEB-16 11:01 tional law professor, at Indiana Tech Law School. This article is dedicated to the loved those ones of who have died as a result of unconstitutional violence by police, law enforcement community seeking and to make positive changes to in their departments and beyond. those within the C Y 37050-how_59-1 Sheet No. 6 Side A 02/15/2016 09:02:40 02/15/2016 A 6 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 6 Side B 02/15/2016 09:02:40 R R R R R R R , , M K C Y De- . 59:5 4 (May 1, Gray, 3 OST VOL . P 1 ASH , W ...... 38 ...... 35 ...... 33 , Dec. 5, 2014, at A18. 2 ...... 43 OST . P . Marilyn Mosby Announces Criminal Charges in Oklahoma Volunteer Officer Who Shot Black Man ASH , W note 3...... 46 —County Deputy to Eric Harris, April 14, —Eric Garner, July 17, 2014, Staten Island, 2015, Tulsa, OK. NY, to police officer choking him. Marilyn Mosby’s Amazing Press Conference supra ...... 38 Nichole Hensley, Oklahoma Volunteer Officer Who Shot Black Man Turns Himself In Stifled Justice ...... 53 see , (May 1, 2015, 3:23 PM) http://www.nydailynews.com/news/crime/criminal- ] (video of incident available through article). 4. Local Remedial Measures Beyond “Reasonableness” Lip Service and the “21- Foot Rule” Justification for Lethal Police Force Probable Cause for Arrest 3. Congressional Measures EWS N (Apr. 14, 2015, 12:41 PM), http://www.theguardian.com/us-news/2015/apr/14/oklaho CIVILIANS! (A PLEA FOR CONSTITUTIONAL CIVILITY) C. Instilling Best Practices for Constitutional Policing A. The Right to Flight, Part I: Fleeing as Insufficient B. The Right to Flight, Part II: Fleeing as Insufficient AILY INTRODUCTION (THE DEATH OF FREDDIE GRAY) On April 12, 2015, a police officer on patrol in Baltimore, Mary- 4. Mosby Transcript, 2. Associated Press, 3. Jonathan Capehart, 1. Editorial Board, IV. STOP KILLING UNARMED AND FLEEING UARDIAN land made eye contact with a young black man, street Freddie Gray, on outside a Baltimore’s Gilmor Homes housing project. Death of Freddie Gray: ‘To the People of Baltimore . . N.Y. . D I Heard Your Call.’ (TRANSCRIPT) spite lacking any probable cause to arrest Gray, the police, upon who, like many in his community, viewed police officers suspiciously, took off running, but was soon chased down by several officers. 2015), http://www.washingtonpost.com/blogs/post-partisan/wp/2015/05/01/marilyn-mosbys-amazing-press-conference/; charges-filed-freddie-gray-death-transcript-article-1.2206744 [hereinafter Mosby Transcript]. ma-eric-harris-robert-bates-jail [hereinafter Turns Himself In 6[ CONCLUSION “I CAN’T breathe. I can’t breathe. I can’t can’t breathe. breathe. I I can’t can’t breathe. breathe. I I can’t breathe.” breathe. I can’t breathe. I can’t “Fuck your breath.” Howard Law Journal \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 2 10-FEB-16 11:01 G 37050-how_59-1 Sheet No. 6 Side B 02/15/2016 09:02:40 02/15/2016 B 6 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 7 Side A 02/15/2016 09:02:40 UBE T OU (May 1, , Y ORKER Y That was but Out of Breath 8 EW , N 9 11 note 3. State Attorney Marilyn Mosby’s subsequent New Video Shows Arrest of Freddie Gray in Baltimore 7 supra Freddie Gray’s Death Becomes a Murder Case CNN, see also ; Freddie Gray was then taken on a fatal ride in the back of In addition, there were numerous missed opportunities for 5 (Gray subsequently “suffered a severe and critical neck injury as a result of being 10 See id. Id. See id. Id. Id. 6 Although the exact causes of each of Gray’s injuries were not Despite Gray’s repeated pleas for medical assistance during mul- Videos and photographs of the incident appear to show Gray’s 9. 7. 8. Mosby Transcript, 6. 5. 10. 11. Amy Davidson, M K handcuffed, shackled by his feet and unrestrained inside the BPD wagon”). 2015), http://www.newyorker.com/news/amy-davidson/freddie-grays-death-becomes-a-murder- case. probable cause statement recounted that even before he the was put wagon, in Gray had complained breathe and requested an inhaler, which he was denied. to the officers that he couldn’t the first of many times he asked for arresting him, and medical the first of help two times he was from documented as crying the officers out that he could not breathe. catching up with the fleeing man, shackled his ankles, cuffed his hands behind his back, and put him in a police wagon on his first, stomach, without securing face him with a seat belt, in violation of department protocol. immediately clear following his autopsy, the medical examiner subsequently identified a deep Gray’s wound shackled body that was bounced could around the have back of occurred the vehicle, while in the police wagon. tiple stops of the police wagon, his cries for help went ignored by the officers. feet already dragging and body partially limp by the time he was put (Apr. 21, 2015), https://www.youtube.com/watch?v=7YV0EtkWyno (showing video of Freddie Gray’s arrest). 2015] 7 the injuries that inevitably killed medical examiner him.had connected the lack As of a restraint Mosby to the recounted, injuries spinal that killed [Gray],” and “the “there had been five opportunities to put a seat belt on Gray, but they were ignored. Instead, at the one officers stop, put ankle shackles on him and put him belly back down on in the the floor.” van, the arresting officers to fasten Gray securely into the van to prevent \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 3 10-FEB-16 11:01 the wagon, a ride so brutal that Gray’s spine two was nearly snapped and in his head death. was critically injured, resulting in his eventual C Y 37050-how_59-1 Sheet No. 7 Side A 02/15/2016 09:02:40 02/15/2016 A 7 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 7 Side B 02/15/2016 09:02:40 , , M K C Y supra 16 . 59:5 VOL Mosby Transcript, see The other fatal injury that likely caused 12 note 3. note 3. 14 supra supra U.S. Justice Dept. Opens Civil Rights Probe into Baltimore Police , (Apr. 22, 2015), 2015 WLNR 11624433; Justice Department Opens Civil Rights Investigation in Freddie Gray’s Death AZETTE 13 G The voices of the protesters were heard and acknowledged 15 , (May 8, 2015), http://www.reuters.com/article/2015/05/08/us-usa-police-baltimore-id Id. Freddie Gray’s death, and the subsequent furor that arose on the The image of Freddie Gray’s body being thrown around the back Whatever the precise cause of Gray’s ultimate death, it is clear Mr. Gray was no longer breathing at all. A medic was finally called to the scene where upon arrival, the medic was now determined in Mr. cardiac arrest Gray and was critically and severely injured. Mr. Gray was rushed to the University of Maryland Shock Trauma where he underwent surgery. On cumbed to April his 19, injuries and 2015, was pronounced Mr. dead. Gray death suc- deemed The homicide manner by of the Maryland Medical Examiner is believed to be the result of a fatal injury that occurred while Mr. Gray was unrestrained by a seatbelt in custody of Department the wagon. Baltimore Police 15. Julia Edwards, 14.Transcript, Mosby 16. Mosby Transcript, 12. 13. Joy Blake, INTERLAND EUTERS R note 3. Gray’s death was the injury to his neck that occurred during at the some violent point ride, an injury so severe that his percent spine was eighty severed from dimensions. his neck, a catastrophic injury of fatal USKBN0NT1LO20150508. of the police van until all life was pounded out that have contributed to the rage that exploded on the of streets of Balti- it is one of many more in the aftermath of Gray’s brutal death. As Freddie Gray took his last breath, the city of Baltimore erupted, with protests filling the streets. streets of Baltimore after the details of his brutal death at the hands of the Baltimore police came to light, are not isolated the incidents.West to the From East Coast, the streets of urban America have been police station that, after the brutal forty-minute ride, when the officers attempted to remove Gray’s limp, mangled body from the van upon arriving at the 8[ by Prosecutor Mosby in her statement to the public subsequent announcing the arraignment of the officers who, lished for indictment probable purposes, had cause caused Gray’s estab- fatal injuries. Howard Law Journal unsecured by a seat belt, after he slipped out of consciousness, and his head hit an exposed bolt. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 4 10-FEB-16 11:01 H 37050-how_59-1 Sheet No. 7 Side B 02/15/2016 09:02:40 02/15/2016 B 7 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 8 Side A 02/15/2016 09:02:40 Police and 19 Out of Breath and with the White House 18 (Aug. 2, 2015, 1:48 PM), http://www.wcpo.com/news/crime/po- Police Protests, Ferguson Spurred 40 New State Measures; Activists 17 INCINNATI Section IV.A. Associated Press, , WCPO C See infra See ]. While problems with excessive police force began long before On a more positive note, this period also marks what looks to be 19. 18. 17. As more and more information comes to light about these events and as new events M K between July 2014 and July 2015 that have been the subject of intense Want More ings were denied in their final assess the landscape moments, of our troubled as police-civilian relations in described an ef- herein) and fort to reverse this tragic largely on trend. the police killings To of unarmed that black men—and end, a this child— article focuses nationwide attention. year-old child). As the number and particularly disturbing nature such of incidents made national news time and time again in that fateful year, the resulting outcry sparked a new movement toward police reform as protesters and communities nationwide clamored for an end to what appears to be a growing pattern of excessive police violence, particularly against black men. July 2014, and the recounting of police violence against unarmed civilians could fill volumes beyond the length of a some point law it becomes necessary review to take article, a breath at (a luxury Eric Gar- ner, Eric Harris, Freddie Gray, and other recent victims of police kill- filled in recent days with blood, mourning, and outrage, as a familiar scenario replays itself all too frequently: killed of by police in our country’s urban communities, all too men frequently and boys of color for no apparent reason other than the fact the men were attempting to escape from the police at the moment they were killed.tumultuous, particularly bloody In one-year a single, period spanning from July 2014 to July 2015, a tsunami of tragedy has crashed across the country through a series of events linked by these chillingly common incidents of police killings of unarmed black men (and in one case, a twelve- lice-protests-ferguson-spurred-40-new-state-measures-activists-want-more [hereinafter Protests the beginning of a long-overdue era of police reform, with dozens of states undertaking police reform efforts across the country resulting in forty new state reform measures; 2015] 9 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 5 10-FEB-16 11:01 unfold, it is tempting for the author to perpetually update this article. could be an endless process.However, such updating As such, the author begs the readers’ indulgence and understanding that the events are described herein as they stood at the beginning of August, 2015. While more details and events will emerge over time, creases, is the what dire need for will meaningful, constitution-focused not reform, which is change, the primary aspi- until the ration of rate this article. of killings de- C Y 37050-how_59-1 Sheet No. 8 Side A 02/15/2016 09:02:40 02/15/2016 A 8 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 8 Side B 02/15/2016 09:02:40 M K O- 23 in C Y and P ]. 20 . 59:5 LEVELAND LEVELAND EPORT VOL C ERGUSON R F ERGUSON In her announcement of the (Apr. 7, 2015, 7:24 PM), http:// Id. One Thing Media Pundits Won’t and elsewhere to direct OW NVESTIGATION OF THE 22 NVESTIGATION OF THE (Apr. 8, 2015, 9:56 AM), http://dallas- ., I 6 N ., I IV OX IV EWS D , F (Apr. 9, 2015), http://allenbwest.com/2015/04/ D N at 12. The DOJ subsequently found that the unconsti- EST Id. IGHTS Walter Scott Killing Shows that Too Often Black at 8. In the 2012 case, over 100 Cleveland police Officer Charged with Murder, Fired; Protesters De- IGHTS Id. R Id. R B W ORNING IVIL . M The culmination of the chase was a grotesquely violent IVIL LLEN C C Id. ALL , A Hollis Conant, Comment to ,D USTICE in Cleveland, Ohio, USTICE with J 21 J Id. T OF T OF ’ 1–2 (2014), http://www.justice.gov/sites/default/files/opa/press-releases/at- note 15. Acknowledging the outrage of the protestors following Gray’s ’ EP EP 1 (2015), http://www.justice.gov/sites/default/files/opa/press-releases/attach- Sharon Grigsby, Opinion, OLICE , supra U.S. D P U.S. D Compare See See ]. The DOJ’s focus on Cleveland was due in part to an incident in 2012, which received EPARTMENT Amidst these remedial efforts, however, dissent and discord D 23. 22. 20. One of the first acts of Department of Justice Attorney General Loretta Lynch as the 21. IVISION OF EPORT Ferguson, Missouri, ments/2015/03/04/ferguson_police_department_report.pdf ments/2015/03/04/ferguson_police_department_report.pdf [hereinafter F tutional police force by the CPD was not confined engages to that in incident, but a that rather pattern the “CPD or Amendment . practice . . at of a significant using rate, and in unconstitutional a victims manner of force crimes, that and is innocent extremely in bystanders.” dangerous to violation officers, of the Fourth morningviewsblog.dallasnews.com/2015/04/walter-scott-killing-shows-that-too-often-black-mens- lives-still-dont-matter.html/, Say About Walter Scott’s Shooting LICE Men’s Lives Still Don’t Matter one-thing-media-pundits-wont-say-about-walter-scotts-shooting/ (commenting “no one has said why he was running or why he even got out of his car why not just take ticket YOUTHWITHOUTYOUTH, and Comment leave”), to mand Justice After Shooting Is Caught on Camera bloodbath: thirteen CPD police officers surrounded the car they total had of been 137 rounds chasing of and ammunition into fired the a car, killing both occupants, who each suffered more than twenty gunshot wounds before dying. and help implement urgently needed police reform. abound. The national coverage of the police killings has divided country the between those who defend the ings—by arguing, in police many cases, that the victims involved were asking for it by in the kill- running away from the police in the first place—and those horrified at the violent taking of civilian lives by those sworn to protect them. 10 [ D R As described herein, some of the conflicted dents reactions arise to these from inci- general confusion by both police and the general Howard Law Journal Department of Justice (DOJ) intervening in Baltimore, Maryland, \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 6 10-FEB-16 11:01 new attorney general was to initiate a federal civil rights investigation of the Freddie Gray incident. Edwards discrim- of patterns widespread any into well, as investigation broader a announced Lynch death, inatory policing and excessive force by the Baltimore police. investigation, she explained, “[i]t was clear to a number of people looking at this the situation that community’s rather frayed trust—to use effect an been severed in understatement—was terms of the relationship even with the police worse department,” and promised and that has “[i]f in unconstitutional policies or practices are found, we will seek a court-enforceable agreement to address those issues.” fox6now.com/2015/04/07/114788/ (commenting “don’t want to get shot then don’t run from the police—especially over a broken tail light”). tachments/2014/12/04/cleveland_division_of_police_findings_letter.pdf tachments/2014/12/04/cleveland_division_of_police_findings_letter.pdf [hereinafter C little national coverage at the time it occurred, compared to more recent incidents, but was even more brutal than the 2014–15 incidents. officers engaged in a high-speed chase of two unarmed black civilians, a man violation and a of woman, in Cleveland Police Department (“CPD”) their protocols, car’s after backfire for they gunshots. apparently mistook 37050-how_59-1 Sheet No. 8 Side B 02/15/2016 09:02:40 02/15/2016 B 8 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 9 Side A 02/15/2016 09:02:40 general excessive po- Out of Breath 24 Tennessee v. Gar- What is Post-Racial? Reflec- The Fallacy of a ‘Post-Racial’ Tennessee v. Garner (Jan. 31, 2012, 5:27 PM), http://inamerica.blogs , Jonathan Capehart, MERICA A See, e.g. N , CNN: I (Dec. 29, 2014), http://www.washingtonpost.com/blogs/post-partisan/wp/ OST . P ASH , W Part IV concludes that, among the proposed reforms, one of the In particular, this article focuses on the apparent disregard, or . The article also addresses the related apparent confusion of an 24. But not, sadly, post-racial. M K prohibition of deadly police force against fleeing, unarmed suspects, serve must be re-educated about the constitutional restraints of police violence. Of particular import are the most important (and perhaps easiest and most ment) is affordable a renewed commitment to to a Constitution imple- focused training of armed officers, i.e., one that emphasizes critical constitutional limitations upon permissible force by peace officers. Here, the article exam- ines possible reasons why some community members may of the have law abandoned model enforcement in favor a of more Constitution-focused violence-permissive approaches policing popular such “21-foot rule” as that seems the to be increasingly used, in place of constitutional standards, as the governing test for when police may use lethal force. To the extent that the Constitution tially has abandoned been as even the par- governing standard for determining the permissibility of lethal police force, both police and the citizens they lice violence in this country. Part III addresses sures various reform being mea- considered across the country killings as at both the a national and result local levels. of the police by itself, establishing probable cause for arrest, let alone lethal force. Part I of this article months chronicles both leading up the and following series the killing of of Freddie police Gray, series a of killings quite in literally breathtaking the events in which men, unarmed and black a child, were killed by police, captured on film with by bystanders, resulting in many massive outcries and of pro- the incidents tests across the country between July 2014 and 2015. Part II connects those events to a longer history of post-civil-rights-era public about the permissible degree of police violence tolerable under our Constitution. outright ignorance, of the limitations of under longstanding permissible Due Process precedent lethal such as violence ner apparently substantial number of police and civilians regarding the degree to which a person’s flight from armed officers may be viewed as, 2014/12/29/the-fallacy-of-a-post-racial-society/; Tim Wise, Opinion, tions on Denial and Reality .cnn.com/2012/01/31/opinion-tim-wise-what-is-post-racial-reflections-on-denial-and-reality/. 2015] 11 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 7 10-FEB-16 11:01 Society C Y 37050-how_59-1 Sheet No. 9 Side A 02/15/2016 09:02:40 02/15/2016 A 9 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 9 Side B 02/15/2016 09:02:40 M K 25 C Y . 59:5 VOL 135 S. Ct. 530 See such abandonment of Consti- 26 , to argue that a Fourth Amendment search and AND BEYOND Heien v. North Carolina Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) (minimizing the availability of CAN’T BREATHE” TO “FUCK YOUR BREATH” But see Eric Garner and Eric Harris While some police trainings fail to clearly enough instruct law en- Freddie Gray’s death, while shocking, is not an isolated event. The additional police killings of unarmed black men that grabbed I. A BREATHTAKING SNAPSHOT IN TIME: FROM “I 25. Tennessee v. Garner, 471 U.S. 26.1, 12 (1985). In other words, to make it more possible for officers to successfully invoke a qualified tution-focused use-of-force training is inexcusable.constitutionality and As a human matter decency, of it peace is to time protect for and officers serve all of whom is entitled to life and liberty under our Constitution and the full of the our urban citizens, every protection of the police, free from unconstitutional and discriminatory one of persecution. 12 [ ally, for plausible deniability purposes, Howard Law Journal and other suspects who do not pose an harm imminent threat to of others, physical as well flight as from police due as independent process and sufficient constraints grounds for against arrest. Had viewing these basic constitutional constraints been heeded by the officers involved in the series of killings detailed herein, the victims of killings those would likely still be alive today. forcement officers about the constitutional boundaries of permissible police force, and it is even possible that some have done so intention- \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 8 10-FEB-16 11:01 immunity defense, claiming that the constitutional parameters of clear, permissible violence or, are invoking un- seizure based on a misunderstanding of the law may be upheld as reasonable. (2014). defenses based on officers’ subjective understanding of whether use of long force as was the use excessive, of so force was objectively unreasonable). tragic dimensions. The ugliness of Gray’s death is compounded when viewed in the context of a surrounding series of police killings in the months preceding and following Gray’s death, which, viewed collectively, paint a snapshot of a particularly troubling historic period of America. police relations in A. From “I Can’t Breathe” to “Fuck Your Breath”: The Deaths of national headlines in the were, months as preceding with Freddie Freddie Gray’s Gray’s death death, literally breathtaking in their 37050-how_59-1 Sheet No. 9 Side B 02/15/2016 09:02:40 02/15/2016 B 9 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 10 Side A 02/15/2016 09:02:40 RIB- . T HI note 2. note 2. , C supra supra , , Out of Breath 31 30 Autopsy reports, which 29 note 1. Then, nine months later, a col- 33 supra note 1. The “I can’t breathe” cries were echoed and supra 32 Tulsa County Officer to Resign Following Shooting, Memo 28 Editorial Board, His alleged crime that led to his being thrown to the sidewalk See id. Id. Oklahoma Volunteer Officer Who Shot Black Man Turns Himself In Oklahoma Volunteer Officer Who Shot Black Man Turns Himself In See 27 On July 17, 2014, an unarmed black father of six, Eric Garner, In response Harris’s cries that he could not breathe, a second po- Thus, the breathtaking nature of the spate of police killings across Just over seven months later, and 1,400 miles away, another un- (May 12, 2015, 7:07 PM), http://www.chicagotribune.com/news/nationworld/ct-oklahoma- 33. 28. 29. 30. Associated Press, 31. 32. 27. As a Washington Post editorial depicted the event, “‘I can’t breathe. I can’t breathe. I M K was choked to death by a police officer on a sidewalk in Staten Island, New York, crying out “I died. can’t breathe” over and over before he UNE lective metaphoric gasp could be heard Harris across became the country the as latest Eric unarmed black man to beg futilely for magnified by civil rights protesters across came down the that the country grand jury in as that case the decided not news to officer who choked indict Garner to death. the described Harris’s death as a homicide, would later show that Harris, at the time he cried out that he could not breathe, had been suffering internal bleeding and collapsed lungs after he was right shot armpit by through a the volunteer reserve police officer. chant of peace activists taking to the streets to protest excessive police violence after the strangulation of Eric Garner at the hands of a New York police officer. Oklahoma, similarly crying out to the police who that he pinned had been shot and him couldn’t breathe. down lice officer, with his knee on Harris’s head, yelled at him, “fuck your breath,” as Harris laying dying and gasping for breath. the country in the nine months between July 2014 and April 2015, is literal, not just metaphoric: “I can’t breathe” became the battle-cry armed black man, Eric Harris, lay dying a sidewalk in Tulsa, 2015] 13 and choked to death by the police? Being a taxed cigarettes. sidewalk vendor of un- \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 9 10-FEB-16 11:01 wrestled to a Staten Island sidewalk by a Garner was phalanx choked of to death.” police Editorial officers. Board, They paid no mind. Mr. police-killing-20150512-story.html. can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t breathe. I can’t can’t breathe. breathe.’ With I increasing panic, Eric Garner left no doubt regarding his distress as he was C Y 37050-how_59-1 Sheet No. 10 Side A 02/15/2016 09:02:40 02/15/2016 A 10 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 10 Side B 02/15/2016 09:02:40 M K C Y . 59:5 Police note 2. 36 VOL supra , 34 that cannot be 35 John Crawford Case: It’s Open Carry for Whites and Open Season on (Aug. 21, 2014, 3:00 AM), http://www.theroot.com/articles/politics/2014/08/john_ OOT Oklahoma Volunteer Officer Who Shot Black Man Turns Himself In , R On August 5, 2014, John Crawford, III, a 22-year-old black man, Each of the following additional infamous incidents between July Although the police killings of unarmed black men (and a child), The callous cruelty of such words shouted at a man pleading for Between July 2014 and July 2015 34. 35. Of course, #notallcops. 36. Albert L. Butler, had rushed into the store and shot Crawford in response to a 911 call in which someone had reported around; a surveillance video later that showed that Crawford was not wav- Crawford was waving a gun Blacks described below, are not the only incidents of such deaths, they are a representation of those cases that have due to received citizen national journalism. attention In these into cases serious doubt any purported justification citizen for the police killings journalism of has cast civilians in the tragic incidents described below. 1. The Death of John Crawford, III was shot dead by police in a suburban Dayton, Ohio, Wal-Mart store after he picked up a toy air rifle—specifically, MK-177 air pump rifle a made for children—from a store shelf. nonlethal Crosman nity, or civil society generally, any longer. 2014 and July 2015, as with the cases of Eric Garner, Eric Harris, and Freddie Gray, involved the killing of unarmed black male civilians by police officers, raising troubling questions about abuse of lethal power by police in this country, and inspiring a movement toward police reform nationwide. B. Other Police Killings of Unarmed Black Men (and a Child) swept under the rug or condoned by either the larger policing commu- crawford_shooting_open_carry_for_whites_open_season_on_blacks.html. his life does take one’s breath away. “Fuck your breath” was perhaps the last thing Eric Harris heard as he slipped out of consciousness to his death. This cold, merciless condemnation from a police officer to the dying man pinned beneath him is but one example of a unacceptable series of atrocities committed by “bad cops” 14 [ Howard Law Journal breath, this time only to hear his pleas met with police the officer’s South chillingly “fuck Carolina your breath” response. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 10 10-FEB-16 11:01 37050-how_59-1 Sheet No. 10 Side B 02/15/2016 09:02:40 02/15/2016 B 10 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 11 Side A 02/15/2016 09:02:40 40 NVES- 41 OLICE EPORT I P RIMINAL ISSOURI C Out of Breath , M HE T Announcing the Announcing ERGUSON 39 F EGARDING R EPORT (Sept. 24, 2014), http://www.washingtonpost Brown was shot after a brief al- ., R The police who shot Crawford did IV 42 OST D ICHAEL BROWN BY 37 . P M ASH IGHTS R , W ]. (Aug. 5, 2015, 9:34 PM), http://www.daytondailynews.com/ IVIL Rally, Demonstration Commemorate Anniversary of Crawford C ROWN EWS B N 4 (2015), http://www.justice.gov/sites/default/files/opa/press-releases/ Against a backdrop of impassioned and tense na- USTICE No Indictments After Police Shoot and Kill Man at an Ohio Wal-Mart; note 37. J AILY 43 note 36. ILSON ICHAEL D T OF W supra ’ M supra EP Sharahn D. Boykin, AYTON ARREN at 4–7. , D D See Id. 38 A month after Crawford was shot dead in the middle of a store On August 9, 2014, Michael Brown, an unarmed black eighteen- Investigation of the Ferguson Police Department HOOTING OF 40. Press Release, Senator Sherrod Brown, Sen. Brown Issues Statement on Department of 41. 38. Butler, 39. Berman, 43. 42. U.S. D 37. Mark Berman, S M K FFICER Shooting Justice Investigation into Shooting of John Crawford, III (Sept. 24, 2014). Justice Dept. Launches Investigation .com/news/post-nation/wp/2014/09/24/no-indictments-after-police-shoot-and-kill-man-at-an- ohio-wal-mart-justice-dept-launches-investigation/. TIGATION INTO THE SHOOTING DEATH OF ON commencement of the DOJ Brown released the statement: “Our top investigation, priority is to ensure that jus- Ohio Senator tice is served Sherrod and that such a tragedy never happens again.partment The of De- Justice is right to conduct an into independent this shooting, which has rightly raised investigation alarm in the community.” not give the young man a chance to ently, did respond they take to into orders, account the nor, fact appar- that he was standing air in rifle the section of the store and was holding harmless store merchandise, not a real gun. Indeed, even if the gun had been arm, an actual fire- holding it would have state. been legal, Ohio being an open-carry tionwide protests, Wilson was cleared by a grand jury after conflicting ing the air rifle around, however. section of Wal-Mart, the Department of Justice initiated an investigation into the Crawford’s killing, although the officer who killed Craw- ford was not indicted on any charges. for the mere act of picking merchandise off the shelf in the air rifle news/news/local/rally-demonstration-commemorate-anniversary-of-cra/nnDjF/. tercation with Wilson, who shot at Brown after away the from him. young man ran O attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf [hereinafter R 2015] 15 year-old, was shot and killed on a Ferguson, Missouri, street by Fergu- son Police Officer Darren Wilson. As of the writing of this article, the investigation is still pending. 2. The Death of Michael Brown and the Subsequent DOJ \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 11 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 11 Side A 02/15/2016 09:02:40 02/15/2016 A 11 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 11 Side B 02/15/2016 09:02:40 M K C Y . 59:5 Darren VOL see also That, among 47 note 41, at 82; The vast majority of 46 In particular, as the DOJ 23 (2014) (describing protests, along protests, (describing (2014) 23 supra Y , ’ 44 OL ROWN B . U. J.L. & P ICHAEL note 21, at 28. M ASH 49 supra , , 46 W at 62, 64–69, 72. Id. HOOTING OF EPORT S R led to the DOJ’s conclusion that the Ferguson Police Ferguson the that conclusion DOJ’s the to led 48 “Continually Reminded of Their Inferior Position”: Social Dominance, Im- EPORT ON ERGUSON F R at 63. 45 Id. Id. See See The incident sparked intervention by the DOJ, which, while Also in November 2014, within months after the Michael Brown 46. 47. 48. While the Ferguson Report is replete with examples of racial disparities in the number 49. 44. Eyder Peralta & Bill Chappell, Ferguson Jury: No Charges for Officer 45. in Michael other evidence, excessive force by Ferguson police officers, the resulting report found, i.e., nearly 90%, is targeted at African Americans.” Department’s activities “stem in part from a discriminatory purpose and thus deny African Americans equal protection of the laws in violation of the Constitution.” described, there was conflicting evidence about whether started shooting Brown when Brown was running away from him, or if (1) Wilson he began shooting after Brown turned around; and (2) whether, right before the officer fired the final fatal shots, Brown had turned around in a threatening manner indicating that he was officer. about to charge the Lenard Hutchinson, plicit Bias, Criminality, and Race of vehicle stops and other police investigations, African arrests, American and community violence the toward evidence members compiled of in the the disturbing report emails also from includes high-ranking a Ferguson number officials of demonstrating racism, making including fun of emails President Obama, the first lady, and black people generally, the including depicting president as a chimpanzee, and mocking other people offensive of stereotypes. color as lazy, illiterate, criminals, and rate, comprehensive investigation of the Ferguson Police Department that revealed systemic problems of unconstitutional, racially discriminatory policing, including a pattern of excessive force bers against mem- of the African American community. clearing Wilson of federal charges, simultaneously conducted a sepa- 16 [ 3. The Death of Tamir Rice killing, and three Midwestern states over, Tamir Rice, boy (whom the officers later claimed looked a to them like an intimidat- sixth-grade ing black man), was shot to death in Ohio (an open-carry state, recall) after police pulled up in response to a call stating that the boy was Howard Law Journal evidence about the details of the killing. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 12 10-FEB-16 11:01 Brown’s Death, NPR (Nov. 24, 2014, 3:37 PM), http://www.npr.org/sections/thetwo-way/2014/11/ 24/366370100/grand-jury-reaches-decision-in-michael-brown-case. with the militarized police response to those protests). 37050-how_59-1 Sheet No. 11 Side B 02/15/2016 09:02:40 02/15/2016 B 11 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 12 Side A 02/15/2016 09:02:40 50 Na- As 53 , Jan. 9, (Jan. 5, OST . P ECORD The child’s ASH 51 Out of Breath & R , W Cold Hearts, Unedited: EWS N In June of 2015, a de- 55 REENSBORO , G Allen Johnson, see also (Jan. 5, 2015), http://hinterlandgazette.com/2015/01/ 2015), 5, (Jan. ]. note 50. AZETTE note 50. (June 13, 2015, 8:24 PM), http://www.latimes.com/nation/na- G supra , IMES supra , Tamir Rice Report: Cleveland Policeman Who Fired Fatal Shots Said note 50. note 50. Hear the 911 Call About Tamir Rice: Gun is ‘Probably Fake,’ Caller National Digest Cleveland Mayor Doesn’t Trust Ohio Attorney General’s Office to Han- 54 The report did, however, record that the officer who L.A. T As twelve-year-old Tamir lay dying on the sidewalk, INTERLAND supra supra ” 56 H 52 , (Nov. 26, 2014, 5:59 PM), http://www.latimes.com/nation/nationnow/la-na-nn- National Digest ; IMES Johnson, Johnson, Janet Shan, Janet James Queally, James See See See National Digest See id. See Id. See 57 In the meantime, the city has pressured Tamir’s family to drop Nearly a year after Tamir Rice’s killing, the investigation remains , L.A. T 55. 54. 53. 52. 56. 57. 50. L.A. Times Staff, 51. M K dle Tamir Rice Case, He Had “No Choice moments, and not offering any kept medical Tamir alive. assistance that could have she cried out begging for her brother’s life, the officers stood by, un- moved, not even allowing the girl to go to her brother’s side in his last Says 2015, at A3 [hereinafter 2015, 3:30 PM), http://www.news-record.com/blogs/thinking_out_loud/cold-hearts-unedited-footage-of-shooting-s-aftermath-is-deeply/article_5bbc7fba-9cf3-11e4-8b78-1375e90cec5b.html; tional Digest: Video Shows Police Tackling, Detaining Tamir Rice’s Sister cleveland-mayor-doesnt-trust-ohio-attorney-generals-office-handle-tamir-rice-case.html. “gun” was, it turned out, just a toy, but the shots from the police were real and lethal. tailed, but redacted, investigation report from the Cuyahoga County Sheriff’s Department was released that made no recommendation of whether criminal charges should be filed against the officer who shot death. to Tamir force. shot Tamir stated that he felt he had no choice but to use deadly carrying what might have been a real gun but was “probably fake.” his distraught fourteen-year-old sister was handcuffed by the police as she tried to tackled, run to her dying brother. restrained, and their lawsuit against the officers while while refusing the to provide a timeline for how long the investigation will investigation is pending, in the hands of local law enforcement investigators, with land mayor stating the on record Cleve- that he does not trust the state attorney general’s office to handle the investigation. tionnow/la-na-nn-tamir-rice-investigation-documents-20150613-story.html. 2015] 17 tamir-rice-911-call-20141126-htmlstory.html; Within seconds of pulling their police cruiser up to the boy, the police leapt out of the cruiser and shot the boy at close range. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 13 10-FEB-16 11:01 Footage of Shooting’s Aftermath Is Deeply Disturbing C Y 37050-how_59-1 Sheet No. 12 Side A 02/15/2016 09:02:40 02/15/2016 A 12 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 12 Side B 02/15/2016 09:02:40 M K C Y OST . P . 59:5 (June 11, ASH VOL , W TLANTIC 61 , A was captured on 64 Their efforts were somewhat 59 (Apr. 13, 2015), http://www.nytimes.com/2015/04/14/us/ (May 4, 2015), http://www.washingtonpost.com/news/post- IMES OST South Carolina, Unarmed Black Men and Police . P The prosecutor’s office must still, however, pro- “Probable Cause” in the Killing of Tamir Rice Walter Scott Shooting Seen as Opening for Civil Suits Against North ASH 60 As Investigation Enters Fifth Month, Tamir Rice’s Mother Has Moved ., N.Y. T North Charleston Police Officer Michael Thomas , W 62 The incident (including an apparent effort by the officer 63 Jonathan Capehart, Alan Blinder, Fed up with the lack of follow-through from the criminal jus- Id. See Id. Id. See 58 On April 4, 2015, yet another unarmed black man, Walter Scott, a 59. David A. Graham, 63. 64. 60. 61. 62. 58. Wesley Lowery, into a Homeless Shelter Charleston’s Police Dept walter-scott-shooting-turns-michael-slager-into-litigant-as-north-charleston-braces-for-suits .html?_r=0 (video of incident available through article). ceed to a grand jury indictment for any conviction to happen; and as of the writing of this article, that has not yet occurred. Slager reportedly laughed about the incident after supervisor the as he fact described with how shooting his Mr. Scott made his adrenaline pump. nation/wp/2015/05/04/as-investigation-enters-fifth-month-tamir-rices-mother-has-moved-into-a- homeless-shelter/. tary manslaughter, reckless homicide, negligent homicide and dereliction of duty, and to charge his partner dereliction with of duty. negligent homicide and successful in nudging justice along. court judge On ruled that June there was 11, probable cause to 2015, charge the a officer municipal who shot Tamir Rice with several crimes, including murder, involun- to plant a stun gun on the man’s body afterward) (Apr. 8, 2015), lina-unarmed-black-men-and-police/ (“There http://www.washingtonpost.com/blogs/post-partisan/wp/2015/04/08/south-caro- are three Slager key walks, then jogs, moments back to where once in stood. At 1:06, the he picks something the Taser, from the ground. At 1:23, he appears to drop up, something next to Scott’s video. body, which he presumably At 0:56, handcuffed immediately after the shooting. The Post reports ‘was that hit police with confirmed the that Taser Scott at least once, because part of it was still attached to him when other 18 [ South Carolina. 4. The Death of Walter Scott father of four, engaged to be married, and man, was shot to death by a police a officer who fired at him eight times former Coast Guards- in the back as he was running from the officer in North Charleston, Howard Law Journal take. tice system, a group of availed community themselves of an leaders Ohio statute in that empowers citizen Cleveland activism creatively in such circumstances, and petitioned a municipal court judge to issue a probable cause finding, rather than waiting for the prosecutor’s office to obtain a grand jury indictment. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 14 10-FEB-16 11:01 2015) http://www.theatlantic.com/politics/archive/2015/06/tamir-rice-case-cleveland/395420/. 37050-how_59-1 Sheet No. 12 Side B 02/15/2016 09:02:40 02/15/2016 B 12 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 13 Side A 02/15/2016 09:02:40 71 ABC News, (Apr. 7, 2015), see (Apr. 17, 2014), Out of Breath UCK ERALD D -H RAY G IMES ? T UCK D , Apr. 8, 2015, at 8A; UCK UN . S , D ALT Ex-South Carolina Officer Is Indicted in Shooting , B WARNING: Graphic Violence. Real-time Events of On June 8, 2015, a grand jury indicted 67 note 64. , June 8, 2015, at A12. (Apr. 9, 2015), https://www.youtube.com/watch?v=ym4tE0SQ What if There Were No Video University of Cincinnati Officer Indicted in Shooting Death of Sa- supra The video consequently went viral on the In- UBE IMES , T 65 , July 29, 2015, at A1. Facebook Is Second-Guessing Your Decision to Watch the Walter Scott 68 OU S.C. Officer Charged with Murder: Video Appears to Show White Patrol- , Y IMES ERALD , N.Y. T 66 -H The shooting, from the video, appears to come suddenly, (Apr. 9, 2014, 6:44 PM), http://www.slate.com/blogs/future_tense/2015/04/09/ , ABC News (Australia), 70 IMES , N.Y. T T LATE The officer was wearing a body camera, which captured the , S See See, e.g. Id. Id. 69 Unlike previous incidents, the killing of Scott resulted in immedi- On July 19, 2015, a white University of Cincinnati police officer note 65 (showing the officer dropping what appears to be his stun gun next to Scott’s 68. Alan Blinder & Timothy Williams, 65. 67.Queally, James 69. Richard Perez-Pena, 66. 70. 71. M K CZY; Lily Hay Newman, Shooting supra body). Death of Black Man http://www.times-herald.com/opinion/20150410-Friday-editorial. muel Dubose Slager for murder. ternet, often accompanied by warnings due to its graphic depiction of Scott’s killing. man Shooting Fleeing Unarmed Black Man video by a witness. not precipitated by any act of violence or aggression from DuBose. Walter Scott Shooting ate action against the shooter: Charleston’s mayor and less police chief received than a video showing an Slager hour shooting at the after unarmed Scott while he the was running away and North Slager apparently dropping the stun gun by his dying body afterward, charges were filed against Slager. 2015] 19 The video also dispels DuBose’s car because he was the being dragged by the car, while confirm- officer’s later contention ing that what he the shot officer freely admitted: that he officers arrived shot on the scene.’ Slager’s DuBose story fell apart because ‘city in officials said clearly that Scott too the was far away to use a Taser murder on Tuesday.”); Opinion, if he did have it.’ The officer was fired and charged with 5. The Death of Samuel DuBose named Ray Tensing shot and black killed man, after Samuel pulling him DuBose, over for an driving without unarmed a plate. front license shooting (the video is available through the below New York article link; Times readers should be braced for the disturbing content before viewing it). \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 15 10-FEB-16 11:01 http://duckduckgrayduck.com/2015/04/07/warning-graphic-video-of-walter-scott-shooting/. facebook_is_putting_warnings_on_footage_of_the_walter_scott_shooting.html (describing Facebook policy of putting warnings on all videos Warning: of the Graphic shooting Video that of appear Walter on Facebook); Scott Shooting C Y 37050-how_59-1 Sheet No. 13 Side A 02/15/2016 09:02:40 02/15/2016 A 13 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 13 Side B 02/15/2016 09:02:40 M K C Y In a . 59:5 74 VOL (July 29, 2015), http:// OST . P ASH 76 , W University of Cincinnati Police Officer 75 Then, he thrusts the weapon through the open car 73 As the Washington Post describes it, the video “appears to Id. Id. Id. Id. 72 The Post documents that “[o]f 558 fatal shootings by police so far The county prosecutor, who days after DuBose’s killing an- dispatcher that medical attention is needed. One minute and 53 seconds proached had the car. elapsed since Tensing first ap- that he stopped him because he was Tensing not displaying asks a DuBose front for plate. his driver’s DuBose hands over only what appears to be a bottle of gin. DuBose license multiple times, but finally admits that he doesn’t have his license with him, adding: “I just don’t. I’m sorry, sir.” With that admission, Tensing asks DuBose to take off his seat belt, presumably a prelude to asking DuBose protests that he had DuBose not done anything wrong and to appears get out to turn of the car the back car. on. At that draws his point, gun. Tensing yells “Stop!” and After the shooting, the car lurches some forward distance and down comes the to street. a Tensing stop runs after it, yelling to a “Hey, how’s it going, man?” Tensing begins. He explains to DuBose 74. 75. 76. 72. 73.Berman, Mark & Lowery Wesley Williams, Kevin more detailed description of the killing (and the apparent lack of any justifiable provocation for it), the Post events captured chronicles by the video the as follows: fatal turn of www.washingtonpost.com/news/post-nation/wp/2015/07/29/prosecutors-to-announce-conclusion- of-probe-into-cincinnati-campus-police-shooting/. window and fires a single round, striking DuBose in the head.” ing shot DuBose upon becoming enraged when DuBose would not this year . . . the death of DuBose is only the fourth to result in criminal charges against the officer”; two out involved black of men shot by the white officers, three and all other three that killings resulted in criminal charges were captured on film. nounced a murder indictment for what he called “a senseless, asinine Tens- that surmised murder,” a question a “without was that shooting” 20 [ Howard Law Journal head. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 16 10-FEB-16 11:01 show DuBose turning the ignition after Tensing tells him to take off his seat belt. The officer reaches toward draws the his door, gun. yells ‘Stop!’ and Who Shot Man During Traffic Stop Charged with Murder 37050-how_59-1 Sheet No. 13 Side B 02/15/2016 09:02:40 02/15/2016 B 13 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 14 Side A 02/15/2016 09:02:40 , 78 Out of Breath (Nov. 4, 2007, 12:00 PM), http:// INES L OLOR , C This is in stark contrast with other 80 PRE-FERGUSON Killed by the Cops What America’s Police Departments Don’t Want You to Know note 69. 81 , supra The prosecutor also acknowledged during his announce- 77 (Dec. 1, 2014), http://www.washingtonpost.com/opinions/eugene-robinson-its-a- In more recent years, the estimate has risen to “as high as OST Id. Id. 79 Bearing in mind the relatively recent developments of wide- In fact, the incidents described in the previous section are but a . P II. THE BIGGER PICTURE OF POLICE BRUTALITY 80. Eugene Robinson, 78. 79.Lowenstein, Kelly Jeff 81. 77. Perez-Pena M K ASH www.colorlines.com/archives/2007/11/killed_by_the_cops.html (describing results through joint national investigation conducted by ColorLines of and The Chicago Reporter of po- findings lice shootings in ten cities resulting in fatalities). countries’ lack of anything close to that number of police killings: “By contrast, there were no fatal police year. Not one. shootings In Germany, there have been in eight police killings over Great Britain last the past two years. In Canada—a country with its own frontier ethos and no great aversion to firearms—police shootings average about a dozen a year.” year span between 1980 and were killed 2005, by police . “about . . 9,500 an average of people nearly one fatal nationally day.” shooting per spread police body through smartphone camera video technology, and Internet use, dissemination of citizen the video evidence thereby obtained, the past year’s events should not journalism advancement be viewed as an anomaly. More likely, such incidents are merely being brought to light to a degree not possible in the days before video evidence became so easy to obtain and disseminate via social media. small sampling of the police killings that occur on a frequent basis in this country. For example, one study reveals that, in the twenty-five exit his car. ment of the indictment, made to a crowd of several braving hundred the rain to people stand together chanting “Black Lives Matter” and “I am Sam DuBose,” that Tensing’s indictment marked the first time in the history of the county that a law enforcement officer indicted had for been murder in relation to use of force while on duty. W 2015] 21 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 17 10-FEB-16 11:01 1,000 police killings a year.” crime-that-we-dont-know-how-many-people-police-shoot-to-death/2014/12/01/adedcb00-7998- 11e4-b821-503cc7efed9e_story.html. C Y 37050-how_59-1 Sheet No. 14 Side A 02/15/2016 09:02:40 02/15/2016 A 14 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 14 Side B 02/15/2016 09:02:40 M K C Y FOR UNE J . . 59:5 TR Laurie L. ENTER FOR VOL , http://map- See C HROUGH . 1, 1–20 (2001). HE EV : T IOLENCE 2005 T . 889, 895 (2014) (citing . L. 149, 149–51 (2009) V RISKS EV U. L. R L. U. ROM RIM -F F might await those un- OLICE L. R AND ATA - 83 New York City Under Siege: The . J. C P UFFOLK T S is a particularly shameful OREST TOPS 82 , 35 S F HIO APPING 27, n.24 (2012), http://ccrjustice.org/sites/ 84 UF-250 D AKE , M , 7 O NYPD S MPACT , 49 W I EPORT ON R UMAN H ISPARITY IN How Accountability-Based Policing Can Reinforce—or Re- . 17, 65 (2000). Abner Louima and Rodney King, who came HE EV D : T RELIMINARY ACIAL Breaking the Code of Silence: Rediscovering “Custom” in Section 1983 RISK P F ., R TS IGHTS , 80 B.U. L. R . R R , David A. Harris, TOP AND ONST ., S Police Corruption and New Models for Reform TS C See, e.g. See The National Police Violence Map . R Furthermore, while most of the attention between July 2014 and In one of the most famous recent cases of an unarmed Latino The disparity with which unarmed victims of police killings tend FOR . 84. 83. Myriam E. Gilles, 82. TR ONSTITUTIONAL ONST Levinson, use force against blacks and Latinos.” murderous eras of police violence against unarmed black citizens from the pre-Civil Rights days. July 2015 has been on black victims of excessive police force, in many urban communities, the people of color been Latino, killed with by the police Latino communities have also also tionately from racial profiling and excessive police force. For example, suffering dispropor- in New York City, “[p]olice reports on stop and frisk—known as UF- 250 forms—show that between 2005 and 2008, 85% of stops and frisks were blacks and Latinos, and that only 8% of whites. In a similar pattern, police stops were—and are—also more likely to and frisks were armed citizens perceived—often wrongfully—as dangerous enough to warrant lethal force by police. The recent spate of killing men of color for little more than fleeing feels startlingly akin, at times, to the more failing of American policing in a day when some wishfully have tried to proclaim that we have entered into a post-racial era. Today’s police killings of unarmed black men, sadly, illustrate that fates even worse than that of Abner Louima and Rodney King (recommending better tracking of police activity, judicial remedies for victims of and audio police and abuse, video recordings of police); Rima Vesely-Flad, Moral Politics of Policing Practices, 1993-2013 pingpoliceviolence.org/ (last updated Oct. 17, 2015) police (providing violence against a African Americans). comprehensive summary of Municipal Liability default/files/attach/2015/08/the-human-impact-report.pdf.) man being killed by police, the family of Ricardo Diaz Zeferino was awarded $4.7 million after Zeferino, brother look an for a innocent stolen bike, man was shot helping to death his by police, who as- C 2008 4 C (2009), http://ccrjustice.org/files/Report-CCR-NYPD-Stop-and-Frisk.pdf; C 22 [ to represent the victims of police brutality in the 1980’s and 1990’s, were brutally beaten, but not killed, compared to those whose have been the focus of attention in 2014 and 2015. Howard Law Journal to disproportionately be people of color \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 18 10-FEB-16 11:01 place—the Fourth Amendment Exclusionary Rule C 37050-how_59-1 Sheet No. 14 Side B 02/15/2016 09:02:40 02/15/2016 B 14 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 15 Side A 02/15/2016 09:02:40 , N.Y. (Apr. 22, Baltimore to 87 (June 12, 2015, TLANTIC Out of Breath In Baltimore, and a separate (Sept. 8, 2015, 10:01 , A RIBUNE 91 88 UN . T . S HI ALT , C Three officers opened note 88. , B 85 The incident was captured supra 86 The victims included “a 15-year- 89 (July 14, 2015, 11:55 PM), http://www.theguardian.com/us-news/ The Brutality of Police Culture in Baltimore Eric Garner Case Is Settled by New York City for $5.9 Million note 88; Wegner & Puente, Ricardo Diaz Zeferino: Videos of Police Shooting Unarmed Man in Bike City to Pay $3 Million for Police Shootings supra UARDIAN , G 90 Id. Id. In Chicago, two recent shootings of unarmed black men alone In other cities across the country, police killings have resulted in , July 14, 2015, at A1. 91. Hal Dardick, 90. Friedersdorf, 86. 87. 88. J. David Goodman, 85. Rory Carroll, 89. Conor Friedersdorf, M K IMES 2014), http://www.theatlantic.com/politics/archive/2015/04/the-brutality-of-police-culture-in-baltimore/391158/ (describing previous settlements); Yvonne Wenger & Mark Puente, Pay Freddie Gray’s Family $6.4 Million to Settle Civil Claims where, eventually, the city agreed to pay a settlement to the family of Freddie Gray to the tune of $6.4 million, that settlement was but the latest settlement paid to resolve police brutality claims; between the years of 2011 and 2014, the city had to pay out $5.7 million to victims of brutality, to a total of over a rights and excessive hundred force lawsuits. individuals who filed civil Theft Go Public $5 million settlement was awarded to the family of a teenaged boy fire, shot Zeferino eight times, and killed him after the unarmed man, apparently confused as he was being shouted at, took his hat off and dropped his hands from behind his head. on camera (and can be viewed at the below link, but readers should be warned that the video is graphic and disturbing to watch). sumed he was a suspect in the bicycle theft. PM), http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-boe-20150908-story .html (describing the settlement in the Freddie Gray case). injuries ranging from broken bones to “head and trauma, even organ death, failure, coming during questionable arrests. Some residents were beaten pavement.” while handcuffed; others were have resulted in combined settlements of $3 million, thrown to the lion, paid by New York City to Garner’s estate. old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a grandmother aiding her wounded cigarette grandson,” and the victims suffered and an 87-year-old expensive settlements paid to the families of the victims. The of Eric killing Garner in Brooklyn eventually led to a settlement of $5.9 mil- T 2015/jul/15/ricardo-diaz-zeferino-video-of-shooting-by-los-angeles-police-made-public. 2015] 23 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 19 10-FEB-16 11:01 5:42 PM), ments-met-0613-20150612-story.html. http://www.chicagotribune.com/news/local/politics/ct-chicago-police-shooting-settle- C Y 37050-how_59-1 Sheet No. 15 Side A 02/15/2016 09:02:40 02/15/2016 A 15 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 15 Side B 02/15/2016 09:02:40 , M K C Y OST As . 59:5 . P 93 ASH VOL In yet an- , W 92 Among those cases, 96 94 97 Thousands Dead, Few Prosecuted Three-quarters of the officers who 95 Chicago City Council Approves Reparations for Police Torture Vic- Chicago Poised to Pay $5 Million to Family of Teen Shot 16 Times by (Apr. 10, 2015, 10:35 PM), http://www.chicagotribune.com/news/local/ (May 6, 2015, 5:45 PM), http://www.usatoday.com/story/news/2015/05/06/chi- RIBUNE III. REMEDIAL STEPS SINCE FERGUSON ODAY . T HI Id. Id. Id. As it is becoming increasingly apparent that lethal force by police While police brutality, particularly in the form of police killings of Half the cases involved unarmed suspects whom the officers had , C , USA T 96. 97. 93. Aamer Madhani, 94. 95. Kimberly Kindy & Kimbriell Kelly, 92. Jeremy Gorner, Police officers had used torture. He was fired.” one newspaper reported, “[f]rom 1972 were subjected to mock executions and electric shock and beaten with through 1991, the suspects telephone books as their interrogators flung racial epithets at them. A Chicago Police Department review board ruled in 1993 that Burge’s other case, although involving “only” torture, not killings, the city of Chicago paid reparations in the amount of $5.5 million to torture victims of a former police commander, who had subjected over one hundred victims, mostly black men, to various forms of police abuse. (Apr. 11, 2015), http://www.washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-few- prosecuted/?post_id=766034178_10153585744604179#_=_. breaking/ct-million-dollar-police-settlement-met-20150410-story.html. tims were charged in those incidents were two-thirds white. of the officers shot and killed a black victim while, in contrast, no white people were fatally shot. shot in the back. That statistic, viewed along with the specific instances specific the with along viewed statistic, That back. the in shot that were the focus of national attention between July 2014 and 2015, indicate a continued pattern of police misconduct that involves unacceptable degrees of violence toward fleeing individuals, and particularly those who happen to be black men. A. The Dawn of a New Reform Movement is not an uncommon occurrence in this country, particularly against civilians on urban American streets, is not limited to victims of color, among fifty-four egregious incidents of police shootings between 2005 and 2015 that resulted in charges being brought (due against to the the victims officers being unarmed and fleeing, for instance), two all of but the victims were black. cago-city-council-torture-reparations-jon-burge/70885118/. 24 [ Howard Law Journal who was shot sixteen times outside a fast food restaurant. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 20 10-FEB-16 11:01 37050-how_59-1 Sheet No. 15 Side B 02/15/2016 09:02:40 02/15/2016 B 15 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 16 Side A 02/15/2016 09:02:40 , Out of Breath 100 At the state level, dozens of states have At the national level, reform measures 98 99 note 18. U.N. Review of Human Rights in U.S. Focused on Police Brutality supra , Id. Police Protests law and standards on the use of lethal force by law enforcement officers; lethal force by law enforcement officers; and The reform movement is, at this point, somewhat inevitable and A June 18, 2015, Amnesty International report contained damn- - All 50 states and Washington DC fail to comply with international - Nine states and Washington DC currently have no laws on use of 99. 98. 100. Andrew V. Pestano, M K States, but also from the international community. For example, the United States recently had to defend its human rights record in front of United Nations Council in Geneva, Switzerland, in light of cent history its of police killings that re- have raised eyebrows and threats of prosecution for human rights violations. under the leadership of the Obama administration several have resulted national in police reform initiatives, below. described in more detail clearly necessary. The impetus to stop police killings of unarmed citizens grows stronger by the day as “Black more Lives and more Matter” common becomes battle a cry across the country and increased video evidence of police brutality confront all who log ternet. on to the The in- pressure to engage in meaningful reform of policies and use-of-force other policing standards, policies and practices is coming not just from communities and government bodies across the United implemented dozens of new state reform sures measures, requiring body including cameras mea- worn by police, the implementation of new civilian review boards and proved other police training, increased transparency and accountability, and community involvement, im- other reform measures. UPI (May 11, 2015, 10:52 faces-human-rights-record-scrutiny-from-United-Nations/4441431347202/. AM), http://www.upi.com/Top_News/US/2015/05/11/United-States- unarmed black men who are either fleeing or otherwise not posing a serious threat, communities across the country are struggling for answers. Various reforms have been considered and implemented at the state and national levels. ing findings about the state of policing in this country, including that: 2015] 25 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 21 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 16 Side A 02/15/2016 09:02:40 02/15/2016 A 16 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 16 Side B 02/15/2016 09:02:40 . M K EO C Y En- OUIS , 128 . 59:5 . L T (June 18, (June , 72 G L note 21, at ’ VOL NT , 22 S I supra , MNESTY EPORT R , A . 761, 815 (2012) (recommending EV ERGUSON . L. R note 45, at 35, 56–114 (recommending re- ICH supra , 110 M Organizational Culture and Police Misconduct note 22, at 45–46; F 101 102 supra , note 18. EPORT R supra note 100. , The Problem of Policing supra . 3, 17–20, 22–24 (2003) (describing remedial measures including litigation , Barbara E. Armacost, . 453, 531–33 (2004) (recommending mandatory record-keeping and reporting); . F. 235, 244 (2015) (recommending independent investigations); Samuel Walker, EV LEVELAND 103 C EV EV 104 See, e.g. See Deadly Force: Police Use of Lethal Force in the United States standards set by US constitutional law on use of law lethal enforcement officers. force by . L. R Police Protests The recent reform movement also is similar to past reform ef- In this pressure cooker of outrage, indignation, and widespread Many of the proposed reforms complement those that have been The condemnation and moral accounting is domestic and internal . L. R . L. R - Thirteen states have laws that do not even comply with the lower UB 104. 102. Pestano, 103. 101. ASH ARV 90–102; 2015), http://www.amnestyusa.org/research/reports/deadly-force-police-use-of-lethal-force-in- the-united-states. W medial measures that utilize implicit race bias and social dominance theories); Walter Katz, hancing Accountability and Trust with Independent H Investigations of Police Lethal Force against and prosecution of police abuse and the implementation of citizen oversight boards). record-keeping and reporting, implementation boards of and citizen other oversight independent investigatory ment methods, of remedies the that take develop- into account race bias (both implicit and overt), and increased litigation abuse. against and prosecution of police forts, to an extent. DOJ involvement in police reform, for example, is Scott in South Carolina have . . . work challenged harder us for progress.’” to do better and to outcry for answers, a new police reform movement is growing across the country. At least two dozen states have begun implementing policing reform measures, and the federal government has been increasingly proactive, with the White working House and with Department of Justice measures. states and localities to help proposed over the implement years by legal reform scholars, such as calls for greater as well; Department of Justice senior counsel for the Civil Rights Divi- Rights Civil the for counsel senior Justice of Department well; as sion James Codogan recently explained, “‘We must selves to ensuring that our civil rights rededicate laws live up to their promise’ . . . our- ‘The tragic deaths of Freddie Gray in Baltimore, Missouri, Michael Eric Garner Brown in New in York, Tamir Rice in Ohio, and Walter U. P 26 [ Howard Law Journal \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 22 10-FEB-16 11:01 Rachel A. Harmon, New Approaches to Ensuring The Legitimacy Of Police Conduct: The New Paradigm Accountability: of The U.S. Police Justice Department “Pattern or Practice” Suits in Context increased reporting requirements); Hutchinson, 37050-how_59-1 Sheet No. 16 Side B 02/15/2016 09:02:40 02/15/2016 B 16 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 17 Side A 02/15/2016 09:02:40 E- R Floyd v. City 107 XECUTIVE E Out of Breath note 105, at 7–8. see also OLICE supra , P , However, while the need 108 In Cincinnati, what became known as a 106 During that period, the DOJ uncovered systemic pat- 109 1 (July 2013), http://www.policeforum.org/assets/docs/Critical_Issues_Series/civil 2013), (July 1 at 21. 105 In re Cincinnati Policing, 209 F.R.D. 395, 397 (S.D. Ohio 2002) (describing “Collab- at 1–3. ORUM See id. Civil Rights Investigations of Local Police: Lessons Learned Id. See Civil Rights Investigations of Local Police: Lessons Learned F As to use-of-force training police reform, consent decrees entered The approach subsequently developed through this era of DOJ- 109. 108. 107. 106. 105. M K of New York, 959 F. Supp. 2d 668, 686 & n.71 (S.D.N.Y. 2013) (describing Cincinnati agreement as a “landmark” settlement). orative Agreement”); Tyehimba v. City of Cincinnati, No. C-1-99-317, 2001 WL 1842470, at (S.D. Ohio *1 May 3, 2001) (“Order Establishing Collaborative Procedure”); SEARCH tory policing. for clear written policies on use of force was emphasized in this era of reform, a summary of the various reform measures entered into during this period did not include reference to the necessary utilization of Constitution-focused policies in use-of-force training, only mentioning Constitution-based training in the context of preventing discrimina- terns of improper police force, biased policing, searches and seizures in cities including Detroit, New Orleans, and Cincin- unlawful stops, nati, Seattle, Pittsburgh, Washington, D.C., Los Angeles, and a number of other localities, carefully constructed to remedy these systemic abuses under the ongo- giving rise to ing monitoring by the DOJ. consent decrees that were not a new development. Rather, between investigated and 1997 assisted in and the reform 2013, of over the twenty-five police DOJ departments. %20rights%20investigations%20of%20local%20police%20%20lessons%20learned%202013 .pdf. into between the DOJ and the target following cities elements that became generally required in use-of-force police contained proce- the dures, trainings and materials: (1) clearly identified categories of permissible levels of force; (2) clearly identified consequences for use for force that is unreasonable or impermissible; (3) procedures, trainings, and policies specific to different types of force; (4) requirements certification, for de-escalation; reporting, documentation and tion, investiga- and supervision; (5) the prohibition of the use of force against landmark settlement agreement, arising out of a Southern District of Ohio federal court-approved Collaborative Agreement, had a on focus community input directed toward holistic police reform. monitored reform was based on improved use-of-force policies, training, supervision and early intervention. 2015] 27 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 23 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 17 Side A 02/15/2016 09:02:40 02/15/2016 A 17 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 17 Side B 02/15/2016 09:02:40 M K C Y . 59:5 VOL While each 110 reform model was judicially created, it decision. In that case, after finding sys- 111 Floyd is a stop and frisk case, and its policing reform Floyd , 959 F. Supp. 2d at 686. a constitutional emphasis that was lacking in other reform at 686–90. at 13. 112 Id. Id. Floyd Id. 113 Another historic development in the area of police reform in re- Although Perhaps because the In the more recent era of police reform in response to the recent 112. 113. 111. 110. Floyd v. City of New York of these elements may be critical to meaningful reform, notably absent is an emphasis on policies for use Constitution-focused of rules of force law. governed specifically by sponse to specific regional problems is the court-initiated New York reform resulting from in the Southern District of New York federal measures as previously described herein. temic problems with police officers targeting African Americans and Latinos for stops and frisks, the federal court ordered a comprehensive reform of policing in New York, including such measures creased as monitoring of in- the police, an end to racial profiling (including suggested trainings to address implicit changes race to bias), supervision and better discipline reporting, of police, cameras, and use the development of ongoing of processes for supplemental police body- reform. 28 [ Howard Law Journal restrained persons who resist officers solely through verbal means; (6) review, response, and auditing requirements; (7) requirements for review board; a and (8) annual training on use of force. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 24 10-FEB-16 11:01 dards, also contained a requirement of Constitution-based police stan- across the country rather than just in response to isolated incidents as they arise. A number of police departments and government forces at the national, state, and branches, have begun to incorporate a variety of platforms for reform, local levels, across different government mandates consequently focused on problems with stopping and frisk- ing unarmed people of color, many of the court’s principles opinion underlying extend to the the parallel and more troubling context lethal of police force against unarmed people of color. The reforms established in that case can, therefore, continue to provide guidance in the context of police killings as well. police killings in Ferguson and beyond, the police reform movement has become even more comprehensive, and initiated more broadly 37050-how_59-1 Sheet No. 17 Side B 02/15/2016 09:02:40 02/15/2016 B 17 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 18 Side A 02/15/2016 09:02:40 . 383 (2003); EV R Y ’ Out of Breath , ACLU (June 2014), OL The Task Force Task The Reexamining the Posse 119 The review will ex- L. & P —are appropriate to 115 ALE 116 , 21 Y 114 note 114. note 22, at 6; Sean J. Kealy, supra note 22, at 6. supra , supra , The review will identify methods of improving EPORT 117 R EPORT R LEVELAND C Second, the White House announced the creation of a new Press Release, Office of the Press Secretary, The White House, FACT SHEET: LEVELAND Id. See Id. See 118 On December 1, 2014, a White House press release invoking the First, the White House announced the commencement of a com- 115. 116. 117. C 118. 119. White House Press Release, 114. M K Strengthening Community Policing (Dec. 1, 2014), https://www.whitehouse.gov/the-press-office/ 2014/12/01/fact-sheet-strengthening-community-policing [hereinafter Release]. White House Press is charged with developing initiative reform measures to “promote effective crime reduction while building public trust.” Finally, the Ad- ministration announced Community Policing the Initiative, which “will increase use of body-worn creation cameras, expand of training for law enforcement agencies (LEAs), a add new $263 million amine whether the programs—some of which have criticized as creating overly militarizing local police forces War Comes Home: The Excessive Militarization of the American Policing https://www.aclu.org/sites/default/files/assets/jus14-warcomeshome-report-web-rel1.pdf. Comitatus Act: Toward a Right to Civil Law Enforcement community needs. training, safeguards and standards to ment. prevent abuse of the equip- “Task Force on 21st Century Policing,” comprised of law enforcement and community leaders working in collaboration with the Department of Justice’s Community Oriented Policing Services. events in Ferguson “and around the country [that] the have highlighted importance of strong, collaborative relationships police and the communities between they protect” announced local several new national programs spearheaded by the Obama administration to address systemic policing problems and to implement community-based policing models and measures nationwide. as they take affirmative steps toward instituting what will hopefully be meaningful, comprehensive, effective, and, increasingly, Constitution- focused reform. Some of the more recent scribed below. reform initiatives are de- B. An Overview of Recent Reform Measures and 1.Proposals White House Initiatives prehensive review of programs related equipment to to local law the enforcement agencies. provision of federal 2015] 29 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 25 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 18 Side A 02/15/2016 09:02:40 02/15/2016 A 18 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 18 Side B 02/15/2016 09:02:40 M K C Y . 41, 95 . 59:5 EV 121 VOL . L. R TS . R UM . H OLUM , 33 C note 21, at 97–102. Remedying Racial Profiling supra , EPORT R This last initiative will result in matching funds for states Brandon Garrett, 122 ERGUSON 120 Id. See In its Ferguson Report, the DOJ recommended a number of rem- Recommendations 122. F 120. 121. & n.171 (2001). and localities to purchase “bodycams” worn by police officers that, it is hoped, will provide a deterrent against excessive police violence, as well as provide evidence in cases where such violence occurs. allegations; (13) transparency through more publically available information about police actions, and a number of corresponding recommendations for remedial measures targeted system. at the Ferguson court 30 [ to “change force use, reporting, review, and response to encourage de- escalation and the use of the minimal force necessary in a situation;” (5) improving policies and training for people interactions such with as those vulnerable with physical or mental disabilities; outreach (6) to youth to avoid the greater continued “criminalizing” of youth; (7) the reduction of bias-based profiling and other discriminatory police conduct; (8) general improvement of proper police training, including in-depth training on constitutional and other legal restrictions on police action; (9) increased civilian participation in police decision-making; (10) better supervision of officers to ensure lawful and un-biased policing; (11) more diverse recruiting, hiring and promotion; (12) improved procedures and practices for responding to officer misconduct edies to address unlawful police practices and to restore trust of that town’s police force. Those recommendations community included: (1) implementing a system of community policing based involvement on and community partnerships; (2) reforming police practices related to stops, seizures, arrests and issuance of summons and citations, ensuring full documentation and accountability driven by constitutional standards and the promotion of public safety rather than quota-driven police and other questionable practices; (3) improving the thorough- ness of the review of stop, search, ticketing and arresting practices; (4) reorienting the police department’s use-of-force trainings and policies Howard Law Journal more resources for police department reform, and multiply the number of cities where DOJ facilitates community and local LEA engage- ment.” 2. The Department of Justice Settlements, Reports and \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 26 10-FEB-16 11:01 37050-how_59-1 Sheet No. 18 Side B 02/15/2016 09:02:40 02/15/2016 B 18 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 19 Side A 02/15/2016 09:02:40 This em- This And, lest 123 124 Out of Breath 125 . 417, 428 (2012) (discussing develop- UST & J ACE “All Eyez on Me”: America’s War on Drugs and R ENDER note 22, at 6. supra , , 15 J. G of the above recommendations by the DOJ are criti- EPORT R all e Douglas Pond Cummings, at 91, 94–95. Andr ´ LEVELAND See Id. Notably, two of the eleven above recommendations emphasize That said, That After rebuking the Cleveland Police Department for emitting the CDP too often polices in a way that contributes to community dis- trust and a lack of respect for officers—even the many officers who are doing their jobs effectively. For example, we observed sign hanging a in the vehicle bay of large a district station identifying it as a “forward operating base,” a military term for a small, secured out- post used to support tactical operations in a war zone. This charac- terization reinforces the outside view the Division—that CDP held is an occupying force by instead of a true some—both partner and resource in the inside community it serves. and 124. 125. C 123. M K and, too often, lethal—police violence, including the reining in of the the need for Constitution-focused reform: the second tion—to recommenda- reform police practices to ensure accountability “full driven documentation by and constitutional standards and the promotion of public safety rather than quota-driven police and other questionable practices”—and the eighth recommendation—general ment improve- of proper constitutional and other legal restrictions on police action. police training, including in-depth training on the Prison-Industrial Complex “militarized” be condemned as hyperbole, the cized DOJ the militarization of itself police forces, for has example, in the criti- following passage from its Cleveland Report: of particular import to those involved in educating both officers and civilians about the limitations of permissible police force.tional Constitu- standards, not sources, must questionable be at the practices core of ment’s derived any physical policies treatment governing of from civilians, law as enforce- the Constitution other at its was core adopted to protect our liberties and government and lives its officers. against abuse by the phasis on the importance of constitutional standards and restrictions is ments in the militarization of urban police). vibe of a militarized war zone, the Cleveland that Report the recommended CDP “undergo a cultural shift at all levels to change an ‘us- 2015] 31 inappropriate militarized treatment of urban citizens. cal measures that must be considered, in Ferguson and beyond. Each reform measure can play an important role in reining in excessive— \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 27 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 19 Side A 02/15/2016 09:02:40 02/15/2016 A 19 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 19 Side B 02/15/2016 09:02:40 M K 129 C Y . 59:5 VOL It is this 127 Id. Through these Through 131 Since then, around 130 126 Cleveland Announces Historic Second Settlement note 129: (May 26, 2015, 5:54 PM), http://www.theguardian.com/ supra UARDIAN , G Ferguson and Cleveland are but three of many cit- 128 Section IV.A. McCarthy & McGraw, See Id. Id. See supra Baltimore, To that end, the DOJ’s Cleveland Report, as the Ferguson report The first major consent decree, as the deals are burgh, known, was following reached a in federal 1997 in complaint Pitts- prompted after while an being taken African into custody by American four police man officers following died a low-speed car chase, and after a white police officer shot dead two black men in a car that had dragged him. The Justice Department reached three such Newark, New Jersey; and Albuquerque. Two current federal investigations—into settlements polic- in 2014: with New Orleans; ing practices in the cities of Ferguson, Missouri, and Baltimore—are ongoing. 130. 42 U.S.C.A. § 14141 (1994) (defining “Unlawful Conduct” and “Civil Action by Attor- 131. 126. 127. 128. 129. Tom McCarthy & Daniel McGraw, ideally, adoption nationwide, including in the the manners final section proposed of this in article. recommendation recommendation by the DOJ, for a renewed emphasis tion-focused on Constitu- policing, which warrants more expansion herein, and, agreements, and with Cleveland’s most recent settlement agreement serving as a model for the new have wave committed of to reform, undertake specific the reforms, targeted focusing, cities “use of largely, force, community on policing, equipment and staffing, accountability, bias-free policing and crisis intervention,” and agreements to two dozen such settlement agreements have been the DOJ and local law enforcement, as of May, 2015. reached between over Chronic Police Abuse had, emphasized the need for a more conscientious Constitution-focused approach to policing that reflects greater respect for tional constitu- rights and provides greater police accountability. 32 [ Indeed, the reform efforts by the DOJ, while receiving more national attention than ever in light of the police killing incidents between July 2014 and July 2015, actually began two decades ago, Violent Crime when Control and Law the Enforcement Act 1994 first authorized investigations by the DOJ of improper stops and searches, use and discriminatory policing. of police force, unlawful Howard Law Journal against-them’ mentality we too often observed and to truly integrate and inculcate community oriented policing principles work into and management the of the daily Division.” \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 28 10-FEB-16 11:01 ies in which the DOJ has intervened, completed investigations, issued reports, and entered into settlements to guarantee policing reform. rate settlement agreements had to be entered into, separated by several years’ time, in order to rein in continued problems with excessive and discriminatory police force. ney General”). usnews/2015/may/26/cleveland-police-officers-abuse-settlement. In Cleveland’s case, two sepa- 37050-how_59-1 Sheet No. 19 Side B 02/15/2016 09:02:40 02/15/2016 B 19 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 20 Side A 02/15/2016 09:02:40 EWS N ARGETED , T Out of Breath 133 ., http://conyers.house.gov/index.cfm/biog- EPS R OUSE OF 132 Representative Conyers, who as of the writ- , U.S. H 134 S. 1038, 113th Cong. (1st Sess. 2013). Recent events in the wake of Ferguson, Missouri demonstrate issued a statement in support of the legislation, which ex- Id. See generally Rep. Conyers Issues Statement on End Racial Profiling Act of 2015 See About: Biography After S. 1038 failed to move, it was reintroduced in the 2015 ses- While the Obama administration has been active and far-reaching and active been has administration Obama the While Brown, Eric Garner, and Antonio Zambrano-Montes—all hands of at police the officers—highlight the links between the issues race and reasonable suspicion of criminal conduct. Ultimately, these of that racial profiling remains a divisive issue in communities across the nation that strikes at the very foundation of our democracy. The deaths of Walter L. Scott—arising from a traffic stop—Michael . (Apr. 26, 2015, 4:51 AM). 135 132. 133. 134. 135. M K ERV plained, in part: provide “‘state-of-the-art training’ to ensure that ‘any use of force is constitutional and lawful.’” raphy (last visited Oct. 10, 2015). sion of Congress by Representative John Conyers, as the End Racial Profiling Act of 2015. S 2015] 33 ing and for the implementation of the Act. ing of this article is the longest serving Member of Congress, and who is also one of the founding Members of the Congressional Black Cau- cus, stalled out in the 113th Congress was S. 1038, the “End Racial Profil- ing Act,” which, by its terms, would (1) prohibit law enforcement officials and agencies from declaratory and engaging injunctive relief to in those injured racial by (3) racial require profiling, profiling, systemic policy (2) changes to provide eliminate condition racial certain profiling, (4) government funding on certifications by local state entities that they and maintain adequate policies and procedures for eliminating racial profiling and have eliminated any existing practices that permit or encourage racial profiling, and on the collection of racial profiling data and the development of best practices for eliminating racial profiling data, and (5) require the Attorney General to issue regulations for the collection and compilation of data on racial profil- 3. Congressional Measures in its programmatic efforts to accomplish meaningful across the police country in reform the past two years, Congress has been less successful. A measure, for example, that was proposed but subsequently \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 29 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 20 Side A 02/15/2016 09:02:40 02/15/2016 A 20 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 20 Side B 02/15/2016 09:02:40 M K & 139 C Y EWS . 59:5 136 (Feb. 25, VOL EWS note 134.The , U.S. N supra , , NBC N An investigation continues as to Id. None of these proposed policing 138 Second Autopsy Of Man Shot By Washington State Police (Feb. 27, 2015), http://www.washingtontimes.com/news/2015/ IMES Congress Left Behind in Rush for Police Reform . T ASH note 121, at 81–83. , W (May 5, 2015, 4:23 PM), http://www.usnews.com/news/articles/2015/05/05/con- supra 137 Gabrielle Levy, Nicholas K. Geranios, EPORT See Id. Rep. Conyers Issues Statement on End Racial Profiling Act of 2015 R See The proposed federal legislation could be an instrumental next The End Racial Profiling Act is not the only policing reform mea- response. The practice of using race or proxy for other criminality by law characteristics enforcement seriously as undermines the a progress we have made toward achieving equality under the law. men are tragic examples of the risk of being victimized by a percep- tion of criminality simply because of their race, ethnicity, religion or national origin. These individuals were denied the basic respect and equal treatment that is the right of every American. Decades ago, in the face of shocking violence, the passage of sweeping legislation made it clear civil that race should not rights affect the treatment of an individual American under the law. I believe that thousands of pedestrian and traffic stops of innocent minorities and needless killings or use of excessive force by the police call for a similar federal 137. Garrett, 138. 139. 136. ORLD Differs, Lawer Says 2015, 5:06 must-aid-local-inquiry-aclu-says-n312231. AM), http://www.nbcnews.com/news/us-news/pasco-shooting-justice-department- fense. feb/27/lawyer-2nd-autopsy-of-man-shot-by-washington-polic/?page=all; Miranda Pasco Shooting: Justice Department Must Aid Local Leitsinger, Inquiry, ACLU Says Antonio Zambrano-Montes incident referenced in Conyers’ statement is another recent police killing of a person of color, this time a Latino man, who was shot at seventeen was times and by police, hit approximately seven times, including two rounds in them when they approached him the for throwing rocks at cars. back, after he was fleeing whether he was also throwing rocks at the police, warranting their shooting at him in self-de- W reform bills had advanced by summer recess of the 114th Congress. to compliance with police reform measures, requiring better data collection pertaining to police-caused deaths, setting best practices standards, increasing body camera use by law enforcement, and reducing the militarization of police forces. step toward increasing laws prohibiting discriminatory racial profiling, a number of which have been enacted at the state level, but the without type of comprehensive changes proposed by effectuate the federal Act to nondiscriminatory, standards. constitutional, and fair sure being proposed in Congress. policing During the first session of the 114th Congress, other proposed measures have included tying federal grants gress-left-behind-in-rush-for-police-reform. 34 [ Howard Law Journal \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 30 10-FEB-16 11:01 37050-how_59-1 Sheet No. 20 Side B 02/15/2016 09:02:40 02/15/2016 B 20 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 21 Side A 02/15/2016 09:02:40 144 , WIS Public’s Right Out of Breath It also lacked (May 1, 2015, 12:01 142 TANDARD S and police departments Maayan Schechter, 140 IKEN also stands out for the speed The mandate, however, was , A see also 143 Apology or Not, Ferguson Police Chief Tells 141 note 55 (describing delay of over five months in South Carolina’s Body Camera Bill Is Now Law supra note 89. note 18. supra , CNN, http://www.cnn.com/2014/09/25/us/ferguson-michael-brown- supra , note 141. supra , Friedersdorf, Will Whitson & Jack Kuenzie, Jack & Whitson Will Eliott C. McLaughlin & Ana Cabrera, See See See, e.g. See Police Protests Baltimore, Maryland, while having a particularly deplorable his- Several state and local police reform efforts that have been im- One state recently moved forward in its consideration of legisla- In addition to federal reform measures, many police departments 144. 141. 143. 142. Schechter, 140. M K bringing charges in the Tamir Rice case). CNN: I Will Not Step Down police-chief-apology/ (last updated Sept. charges, in issuing an apology, and even moving 24, Michael Brown’s body from the crime scene for 2014, 2:24 many PM) hours after he (describing was killed); Shan, delay in bringing bill-is-now-law (last updated June 20, 2015, 6:07 PM); to See Stops Short with Senate Bill on Body Cameras (June 10, 2015, 4:54 PM), http://www.wistv.com/story/29289442/south-carolinas-body-camera- any provision enabling public access to body the cameras, videos which from had the been police legislation a negotiations. heated subject of dispute in the tory of police violence in recent years, review of their policies and procedures in light of the intense spotlight being put on them and pressure to do so nationwide. plemented during the July 2014-2015 period are worth highlighting. tion requiring police body camera monitoring, motivated by the tragic killing of one of its own. After the death of Walter Scott, shot in back the by a North Charleston police officer, the state of South Carolina enacted a new law requiring the implementation of state regulations that will ultimately require every police equip department its in officers with the body state cameras. to in the remaining states have undoubtedly at least engaged in a cursory with which the officers involved in the death charged, of especially Freddie Gray in were comparison to the example. for Rice, Tamir and Brown Michael of cases the in charges delayed announcement of 4. Local Remedial Measures across the country have initiated re-examinations of their policies following the intense scrutiny paid to urban policing after the killings discussed series in of this article that have been at the forefront of national attention. Two dozen states implemented forty measures between police July 2014 and July reform 2015, AM), http://www.aikenstandard.com/article/20150501/AIK0101/150509995. largely unfunded at the time of the bill’s enactment. 2015] 35 In addition, after the announcement of the indictments, the mayor of \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 31 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 21 Side A 02/15/2016 09:02:40 02/15/2016 A 21 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 21 Side B 02/15/2016 09:02:40 , M K C Y . 59:5 , May 5, 150 148 VOL IMES (Apr. 8, 2015, 1:33 , N.Y. T EWS , CBS N (Apr. 8, 2015), http://www.bostonglobe.com/ , Justice Department Will Investigate Baltimore Po- LOBE . G OS , B Baltimore Mayor Seeks Federal Investigation of Police Department As a result of the large turnout by Ferguson vot- , May 7, 2015, at A14. Ferguson Residents Turn out, Elect Two Blacks to City Council: Voters Police Struggle with Loss of Privileged Position 147 The measure specifically authorizes local govern- IMES 149 A day after the mayor’s request, the DOJ agreed that , N.Y. T John Eligon, 146 145 (May 6, 2015, 8:49 PM), http://www.baltimoresun.com/news/maryland/politics/bs-md- See See Ferguson Election Results in Half-Black City Council UN Another community struggling to move beyond its tainted past is In St. Louis proper, the St. Louis Board of Alderman enacted a . S 147. 150. St. Louis, Mo., Ordinance 69984 (Dec. 5, 2015). 149. Noam Scheiber, 148. 146. Matt Apuzzo & Sheryl Gay Stolberg 145. Luke Broadwater, ALT Reject Protest Activists’ Candidates 2015, at A1. lice Practices ments within the St. boards to Louis receive, review and make independent region findings and recom- “to establish mendations on complaints civilian from members of the oversight public against members of the Police Department,” in recognition of the importance community of policing and citizen involvement, and that better law enforcement “can be enhanced by an independent citizen oversight process regarding allegations of misconduct” by law enforcement. such an investigation was warranted, and commence an investigation into whether the Baltimore Police Depart- announced that it would ment had engaged in unconstitutional patterns policing. and practices in its ers, a large population of whom are African American and historically underrepresented in their own municipal government, the number of black councilmembers on the Ferguson City Council tripled. news/nation/2015/04/07/ferguson-election-could-reshape-city-council/ vwo5eFUpxvBCH0EjnqcA3M/story.html. Department. Ferguson, along with the greater metropolitan St. Louis area. In Fer- guson, the voter turnout for the first municipal election following the troubling events of the past year was three times that of the council last election, city and reflected a voter turnout rate double that of the city of St. Louis. measure creating a civilian oversight board over the St. Louis Police 36 [ Howard Law Journal Baltimore requested from the Department of Justice a full civil rights investigation to examine the Baltimore Police Department’s pattern and practices, including the department’s use of “excessive force, discriminatory harassment, false arrests, and unlawful stops, searches or arrests.” \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 32 10-FEB-16 11:01 ci-doj-partnership-20150506-story.html. AM), http://www.cbsnews.com/news/ferguson-election-results-in-half-black-city-council/. B 37050-how_59-1 Sheet No. 21 Side B 02/15/2016 09:02:40 02/15/2016 B 21 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 22 Side A 02/15/2016 09:02:40 EWS N AHOO The New , Y 153 . J. (Aug. 11, 2015, Out of Breath T S ALL Oath Keepers Turn Up at , W Oath Keepers Say They’re Defending (Aug. 11, 2015, 5:24 PM), http://www EWS , NBC N , NPR (Aug. 12, 2015, 8:22 PM), http://www.npr.org/ Law Enforcement Analysts Suggest Changes to Police , http://www.21alive.com/news/top-news/Law-enforcement- EWS Ferguson Suffers Another Night of Unrest 154 they may become more prolific today in the face of greater State of Emergency Issued Following Ferguson Anniversary Violence Ben Kesling, 151 152 Id. Id. See (May 6, 2015), ABC N While such civilian oversight boards may be traced back to the Local efforts to remedy past police abuses have also come to in- In other cities across the countries, similar and other reform mea- As for New York City, another focus of police reform attention, Despite these steps of progress in Ferguson, tensions remain in 154. 153. Meghan Keneally & Evan Simon, 151. 152. M K 1992 creation of Board, New York City’s Civilian Complaint Review analysts-suggest-changes-to-police-training-302735961.html?llsms=1165741&c=y. Taser guns. York Police Department has announced training procedures, large-scale including revisions changes to its to trainings related to its appropriate uses of force and better communication, and new training in both firearms and “less than lethal” weapons such as pepper spray and 7:50 PM), http://www.wsj.com/articles/ferguson-suffers-another-night-of-unrest-1439284454; Ja- son Sickles, incident in which the police shot black and man; in critically the wounded meantime, a an group of armed heavily self-titled armed “Oath white Keepers” militia patrolled the streets of Ferguson ingly menac- (to a number of the residents of Ferguson, with at least) decorated camouflage and police. assault rifles, but left undisturbed by the citizen awareness of and concern about other community-focused measures policing of reform. issues, along with the city. On the one-year anniversary of gency Ferguson, was a declared and state around of 120 protesters emer- were arrested after an clude historic settlements awards, such as those detailed in Section III of this article in the City of Chicago, resulting from a number of incidents of police killing unarmed black men. sures are likely to be considered and adopted as well, as a new wake- new reform measures are once again being considered. ferguson-anniversary-protest-055405433.html; Cassandra Vinograd, Michael Brown Protests in Ferguson, Missouri 2015] 37 (Aug. 10, 2012, 3:44 PM), http://news.yahoo.com/police-shoot-gunman-who-opened-fire-during- \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 33 10-FEB-16 11:01 .nbcnews.com/storyline/michael-brown-shooting/oath-keepers-turn-michael-brown-protests-ferguson-missouri-n407696; Hansi Lo Wang & Sam Sanders, Ferguson; Others Say They’re Not Helping sections/thetwo-way/2015/08/12/431978076/oath-keepers-say-theyre-defending-ferguson-others- say-theyre-not-helping. Training C Y 37050-how_59-1 Sheet No. 22 Side A 02/15/2016 09:02:40 02/15/2016 A 22 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 22 Side B 02/15/2016 09:02:40 M K 159 C Y . 59:5 VOL decision, the Fourth have, however unfairly, be- 156 The child was unarmed, but was 158 157 Tennessee v. Garner is relatively inexpensive, intuitively easy, note 89. 155 involved the police shooting of an eighth supra Section IV.A. , Friedersdorf, (A PLEA FOR CONSTITUTIONAL CIVILITY) at 3–4. Id. Id. See supra See, e.g. for Lethal Police Force No police training on the use of force can be sufficient without Tennessee v. Garner Of all the possible reforms to reduce excessive police violence, 159. 157. Tennessee v. Garner, 471 U.S. 158. 1, 1 (1985). 155. 156. IV. STOP KILLING UNARMED AND FLEEING CIVILIANS! emphasizing the constitutional imperative that lethal force may not be used by police against unarmed, fleeing individuals who do not pose an imminent serious danger to anyone. This use-of-force limiting principle has been a well-established rule of law for been clearly and adamantly thirty set forth as a basic constitutional mandate years, having in the Supreme Court’s 1985 come the ugly face of police brutality nationwide. A. The Right to Flight, Part I: Fleeing as Insufficient Justification suspected of breaking into a woman’s home while she was at home. grade boy in Memphis Tennessee. and critically needed: every police department in include this in its country policing must reform efforts a guarantee that all officers taught the are essential constitutional limitations upon permissible police force against civilians. Police training must be Constitution-driven at is core. While many ments undoubtedly emphasize constitutional boundaries law in their train- enforcement agencies and police ing depart- already, in some neglected or are police in need of re-emphasis, forces, as a certain type of such bully of- lessons ficers in various regions are of the country either being The boy was killed by police as he was climbing a fence, attempting to 38 [ Howard Law Journal fulness has dawned on the country, and demands for longer reform be can ignored. no one solution, which is among the measures proposed by the DOJ in its various reform proposals, \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 34 10-FEB-16 11:01 Amendment holding of which limited the common law “fleeing felon rule” to no longer allow lethal felons force (let alone against non-felons). non-dangerous fleeing 37050-how_59-1 Sheet No. 22 Side B 02/15/2016 09:02:40 02/15/2016 B 22 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 23 Side A 02/15/2016 09:02:40 . EV Scott Scott v. Harris , 55 B.C. L. R Out of Breath 162 The officer who shot the 160 The Death of Inference 161 Although deadly force may be used 163 166 Plumhoff v. Rickard, 134 S. Ct. 2012, 2021 (2014) (same result as see also it has never found such a danger posed by an unarmed While later Supreme Court cases recognized that a suspect , 550 U.S. at 382. 165 Scott v. Harris, 550 U.S. 372, 386 (2007) (holding that “[a] police officer’s attempt to This case requires us to determine the constitutionality of the at 11, 20. at 11. at 3. at 4 & n.3. 164 Id. See Id. Id. Scott Id. Id. In its analysis, the Court emphatically declared that “[t]he use of The Supreme Court decision began with the following declaration following the with began decision Court Supreme The use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used un- less it is necessary to prevent the escape and the officer has probable cause to believe that the suspect death poses or serious a physical injury significant to the threat officer or of others. 165. 163. 164. 162. 166. 160. 161. M K terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing injury or death”); motorist at risk of serious in case where car chase “exceeded 100 which time miles over two dozen per other cars on hour the road and were forced to lasted change course, and over the Court concluded five that minutes,” the during fleeing driver’s “outrageously reckless risk,” driving justifying posed a a police grave shooting); Andrew public S. safety Pollis, physical harm, the Court further explained, the fact that the broke into suspect a house in that case did not establish probable cause when the arresting officer “had no articulable armed.” basis to think Garner was when there is probable cause that the suspect poses a threat of serious child testified that he believed the child to be unarmed but nonetheless shot him because he believed that fence, he if could the outrun the boy officer. made it over the 435, 474 (2014) (questioning the validity of the Supreme that Court’s “‘no conclusion reasonable in jury could have believed’ the involved used plaintiff’s unnecessary assertion deadly force,” that in the light police of the officers views of laypeople to the contrary). fleeing in a speeding car might in some cases may pose such a danger to others, individual fleeing by foot. flee the police who were pursuing him. deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. . . . Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so . . . .” that immediately and unambiguous articulated the rule limiting permissible deadly police force: 2015] 39 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 35 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 23 Side A 02/15/2016 09:02:40 02/15/2016 A 23 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 23 Side B 02/15/2016 09:02:40 M K 169 : A C Y use . 59:5 v. [ ORCE Garner F VOL has been cited 168 171 may not Graham XCESSIVE Garner E (2002), http://www.justice SE OF U , 471 U.S. 1, 9 (1985). 167 OMMUNITY OLICE , https://a.next.westlaw.com/Document/ C ., P ERV ESTLAW S , W 170 . at 11. A police officer may not use suspects, it necessarily extends to at prohibits the use of deadly police force Id OLICE AND THE ELATIONS , a fleeing felon), absent probable cause note 22, at 13. P Tennessee v. Garner felon was sympathetic to the need of law enforce- . R Garner supra MTY , Garner C Tennessee v. Garner , 471 U.S. at 11, and the use of deadly force is not Garner EPORT USTICE R J ANDBOOK FOR THE remains the seminal decision on the use of deadly force OF ], 490 U.S. 386 [(1989)]. . H T ’ see Garner The most significant and “intrusive” use of force is the use of EP LEVELAND Id. Id. Applying this clearly established law, the DOJ elaborated in the Thus, the critical constitutional rule that must be emphasized and To the extent that The Court in Garner ject, justified in every situation involving an armed subject. deadly force, which can result in the trat[ing] taking the interest of of . human . . life, society “frus- . . . in guilt judicial determination and of punishment.” Use of deadly force (whether or not it actually permissible only when causes an officer a has probable death) cause to believe is that a suspect poses an immediate threat of serious physical harm to the officer or another person. deadly force against an unarmed and otherwise non-dangerous sub- Connor 170. C 171. 167. 168. Search Query of 169. D ONCILIATION .gov/archive/crs/pubs/pdexcess.htm. C is the key case in analyses by the DOJ in its review of police force. Ibdedc6a19c2511d9bc61beebb95be672/View/FullText.html (revealing that (revealing Ibdedc6a19c2511d9bc61beebb95be672/View/FullText.html report that the use of lethal force by police officers is not justified in circumstances “including against unarmed or fleeing suspects who do not pose a threat of serious harm to officers and others.” re-emphasized in police trainings deadly is violence against an unarmed this: person, a fleeing An person, or a ci- officer vilian (even, under 40 [ For example, the Cleveland Report stated: Howard Law Journal \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 36 10-FEB-16 11:01 to stop unarmed fleeing least an equal degree to protect non-felons who are running from the police, such as Eric Garner, Eric Harris, and Walter Scott. ment to restrain fleeing felons, but nonetheless found that killing fleeing suspects went beyond the pale, declaring: “It is not better that all felony suspects die than that they escape.” in 3,324 cases, with only six of those cases declining to extend use the of case’s deadly holding force). regarding the by police today, and is unambiguous, well-established law. 37050-how_59-1 Sheet No. 23 Side B 02/15/2016 09:02:40 02/15/2016 B 23 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 24 Side A 02/15/2016 09:02:40 174 173 note 2. supra , Out of Breath note 22. supra , EPORT Although this principle is well-established R 172 LEVELAND note 55. C supra Oklahoma Volunteer Officer Who Shot Black Man Turns Himself In See generally The disconcerting implication of this exchange is that the officer Similarly, the officer who shot Walter Scott two days later, while One case in point was caught on video, in the tragic killing of Eric More alarming still is the apparent lack of awareness of this es- Then there is a pause for a few seconds, and softly: Slager speaks again, “I don’t understand why he took off like that.” The supervisor suggests to Slager, “When you get home, probably be it a good idea would to kind of jot down your thoughts on what happened—the adrenaline is just pumping.” “It’s pumping,” Slager responds, and they both laugh. Hutchinson, 174. 172. And, no, subjective fears based on implicit race biases do not count as probable cause. 173. M K under Supreme Court precedent, there is a disconnect with the public, evidenced by prolific internet cries of “he shouldn’t have run!” in response to each new police shooting, as if even fleeing in a justifies civil society execution, governed by constitutional protections. that deadly force is needed to prevent an immediate threat of serious physical harm to others. who responded to “he shot me” with the ran” explanation believes “You that fucking those who run from police shot officers to death. deserve to be laughing about the adrenaline rush he got from killing Scott, also revealed in the following dashcam video-captured exchange that he shot Scott not to prevent a threat but, instead, because Scott was fleeing: ing, unarmed, or other civilians who do not clearly pose an immediate threat to others is not a complicated principle.seems, But is it lost is one on that, too it many rush trigger-happy gets the better of officers them in the heat whose of the moment (and adrenaline for other potential reasons discussed in Section D, below). Harris. As Harris lay dying on the sidewalk, been shot, crying “fuck your out breath” that was not he the only had response he got from the officers pinning him to the ground. Moments breath” before came “fuck this your exchange: “Harris screams: ‘He shot God,’ and me. a Oh, deputy replies: my ‘You fucking ran. Shut the fuck up.’” sential constitutional rule by some constitutional police mandate that deadly force may not be used against flee- officers themselves. The 2015] 41 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 37 10-FEB-16 11:01 See C Y 37050-how_59-1 Sheet No. 24 Side A 02/15/2016 09:02:40 02/15/2016 A 24 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 24 Side B 02/15/2016 09:02:40 M K C Y . 59:5 VOL It is uncommon ’s clear-cut prohibi- 178 Garner 175 Dash Cam: Officer Who Shot Black Man Told Boss He 177 (Apr. 13, 2015, 1:57 PM), http://www.seattletimes.com/nation-world/ note 69. IMES T supra , Gibson v. Cty. of Washoe, 290 F.3d 1175, 1197 (9th Cir. 2002) (“The Due This seems particularly the case in light of the officer’s EATTLE 176 , S Id. See, e.g. There are undoubtedly many more incidents in which a police None of the police actions in these cases, at least from the facts as Furthermore, these and other cases may also illustrate a related Similarly, in the shooting death of Samuel DuBose by a Univer- Another short pause. “I don’t understand why he’d run.” 177. 178. 176. Perez-Pena, 175. Bruce Smith & Phillip Lucas, Process clause protects pretrial detainees punishment.”). from the use of excessive force that amounts to in a civilized society, but among our peace officers sworn to serve and for police to admit, however, that they are acting out of retaliation for feeling disrespected; more commonly, as in the above examples, they express without hesitation their belief that shooting was justified because a suspect was trying to flee. officer’s shooting of a fleeing person coincides with the officer’s mis- taken belief that fleeing, in itself, justifies the use of lethal force.This misunderstanding must not be allowed to persist in our nation’s police forces a day longer. Among the civilian community, it is more under- standable that people confuse CSI, James Bond, and Wild tional West scenes with what is appropriate fic- and constitutionally permissible Ran Away own statement that “He took off on me. I discharged one round. Shot the man in the head.” DuBose. they are currently known, would survive tion against the use of deadly force to stop a fleeing felon, let alone an innocent civilian. and similarly alarming pattern: the tendency force of as a punitive some measure in response police to police to feeling disrespected use or otherwise angered by the victim of violence has their also force. been deemed unconstitutional. Such retaliatory sity of Cincinnati DuBose’s police attempt to officer put his key on in the ignition away July of from the his officer car was immediately 19, and followed by drive his being shot fa- 2015, tally the in the head indicates fact that, as with the that others, DuBose’s attempt to flee was likely a deciding factor in the officer’s decision to shoot sharpton-praises-response-to-fatal-sc-police-shooting/. 42 [ Howard Law Journal \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 38 10-FEB-16 11:01 37050-how_59-1 Sheet No. 24 Side B 02/15/2016 09:02:40 02/15/2016 B 24 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 25 Side A 02/15/2016 09:02:40 180 Out of Breath The rationale 179 [I]t is not universally true that a man who is conscious that he (quoting Alberty v. United States, 162 U.S. 499, 511 (1896)). Id. In a similar vein, all police trainings must also include instructions In today’s times, there is another reason to add to the list of rea- Cause for Arrest scene of a crime through fear of being parties, apprehended or as from the an guilty unwillingness to appear as witnesses. true as an accepted axiom of criminal law that ‘the wicked flee when Nor is it no man pursueth, but the righteous are as bold as a lion.’ has done a wrong, ‘will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right, and proper,’ since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the 179. Wong Sun v. United States, 180. 371 U.S. 471, 483 n.10 (1963). M K for skeptically treating the argument that flight, in and of itself, estab- lishes probable cause of guilt? As the Court explained, as early as in an 1896 case: cause for arrest. The “consistently Supreme doubted Court, the by probative its value own in dence that the accused fled the scene description, of an actual criminal or supposed crime,” has trials of evi- as evidence of probable cause sufficient for arrest. protect us and abide by the Constitution, such excessive violence police by can no longer be tolerated. B. The Right to Flight, Part II: Fleeing as Insufficient Probable that fleeing from the police does not, by itself, give rise to probable and be spared bullying tactics to which others Thus, while have some people (including, too been often, the police who subjected. employ lethal force) may view flight by itself as establishing probable cause of wrongdoing, others recognize that fleeing at the sight of armed of- sons—other than guilt of a crime—that a person may run away from the police: the knowledge of the very incidents that are the subject of this article. To the extent that police killings of unarmed men—and,disproportionately, black men—has within urban become black communities across common the country, it that knowledge is some no black wonder men may flee at the take sight their chances that they will be of treated civilly, presumed innocent, an officer rather than 2015] 43 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 39 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 25 Side A 02/15/2016 09:02:40 02/15/2016 A 25 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 25 Side B 02/15/2016 09:02:40 , M K C Y . 59:5 VOL 181 A Half-Century Since Brown: The Legal Academy’s Views of Racism . 209, 224 (2005). EV Mr. Gray was then placed back down on his stomach at which Officer Miller and Nero then handcuffed Mr. Gray and moved On April, 12 2015 between 8:45 and 9:15 a.m., near the corner Having made eye contact with Mr. Gray, Mr. Gray subse- L. R The statement of probable cause is as follows: This point was emphasized by Baltimore City State Attorney time Mr. Gray began to flail his legs and scream placed as Officer Mr. Miller Gray in a restraining While Officer Nero technique physically held him down against him will known while as a leg lace. a BPD wagon arrived to transport Mr. Gray. Lt. Rice, Officer Miller come in contact with pursuing officers, Mr. Gray surrendered to Of- ficers Miller and Nero in the vicinity in the 1700 block of Presbury Street. him to a location a few feet away Mr. from Gray his was then surrendering placed location. in a prone position with his arms cuffed hand- behind his back. It was at this time that Mr. Gray indicated he could not breathe and requested an inhaler to no avail. Miller Officer and Nero then placed Mr. Gray in a seated position and sub- stantially found a knife clipped to the inside of his pants pocket. The blade of the knife was folded into the handle. The knife was not switchblade a and is lawful under Maryland law. These officers then removed the knife and placed it on the sidewalk. of North Avenue and Mount Street. Lt. Rice of the Baltimore Police Baltimore the of Rice Lt. Street. Mount and Avenue North of Department while on bike patrol with Officer Garrett Edward Nero Miller made eye and contact with Freddie Carlos Gray Jr. quently ran from Lt. Rice. Lt. Rice mental then radio dispatched that over he was depart- involved in a foot bike pursuit patrol at which officers time and Nero began to pursue Mr. Gray. Having DAHO 181. Patrick M. Garry, Freddie Gray in the first place, prior to their fatally rough treatment of him: Marilyn Mosby in a press conference explaining the finding of probable cause leading to the indictment of the officers allegedly responsi- ble for the death of Freddie Gray. Mosby’s summation to the of media the probable cause grounds for filing homicide and other against Gray’s arresting charges officers began with a detailed narrative focusing on the lack of probable cause the officers themselves had to arrest 44 [ Howard Law Journal ficers is not evidence of guilt, because “young black men have ample reason to flee from the police.” \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 40 10-FEB-16 11:01 42 I 37050-how_59-1 Sheet No. 25 Side B 02/15/2016 09:02:40 02/15/2016 B 25 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 26 Side A 02/15/2016 09:02:40 , NPR (May Out of Breath 182 184 note 3. supra Schmoke further elaborated: By the time Officer Zachary Novak and Sgt. White attempted [U]nfortunately, what has happened over the last few years is 183 Id. Former Baltimore Mayor: Police Charges Send Signal On Arrest Standards Such blurred lines are, indeed, a tremendous problem. Ideally, Former Baltimore Mayor Kurt Schmoke, who currently serves as to remove Mr. Gray from breathing at all. A medic the was finally called to the scene where upon wagon, Mr. Gray arrival, was the medic no determined Mr. longer Gray was now in cardiac and was arrest critically and severely injured. and Officer Nero failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed by Mr. Gray. Lt. Accordingly Rice Officer Miller Gray. . . and . Office Nero illegally arrested [omitted: lengthy Mr. description of multiple Gray occasions asked for medical during treatment and which was denied, despite officers observing his deteriorating medical condition] that there’s been kind of a blurring of the lines about when you can stop somebody and when you can actually arrest. And so all that I believe what she was doing in some of the charges was sending the signal that she wants the officers to go back to the standards that the Supreme Court has set for probable cause, and those don’t standards or try blur to the lines. bend 184. 182. Mosby Transcript, 183. M K 3, 2015, 7:45 charges-send-signal-on-arrest-standards. AM), http://www.npr.org/2015/05/03/403946516/former-baltimore-mayor-police- arrest, and beyond. Mosby will be just one among many government officials and community leaders who take the lead in re-instilling basic constitutional standards in police reform, and remedying the ongoing problems in urban American with excessive police force, from the point of pursuit, to the President of the University of Baltimore, while commenting upon the above probable cause statement by Mosby, surmised that in focusing on the illegality of Freddie Gray’s initial arrest, Mosby “was trying just to send a signal to the police department dards for that probable cause to there make an arrest, and are just someone looking stan- at you and running cause.” away does not meet a standard of probable 2015] 45 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 41 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 26 Side A 02/15/2016 09:02:40 02/15/2016 A 26 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 26 Side B 02/15/2016 09:02:40 M K C Y OLICE . 59:5 Heien , P Rather, VOL 186 Graham v. Connor restrictions on the use of at all, even in the context of Tennessee v. Garner note 26. case, which it describes in the following terms: Tennessee v. Garner 36–37 (Aug. 2012), http://www.policeforum.org/assets/docs/Critical_Is 187 supra Graham v. Connor, 490 U.S. 386, 388 (1989). ORUM F cases cited, 185 There is no simple formula for assessing the Constitutionality The landmark 1989 Supreme Court case ESEARCH See An Integrated Approach to De-Escalation and Minimizing Use of Force See generally See Assuming good faith, however, it is more likely that police are With the cases highlighted in this article providing examples of “Reasonableness” “Reasonableness” Lip Service and the “21-Foot Rule” of a use of force, the Court noted; rather, the assessment depends provides that a Fourth Amendment standard of “objective reasonableness” (rather than the Fifth Amendment guarantee of due process) is the proper test for considering all claims of excessive force by police officers during the course of an arrest, investigatory stop, or other seizure of a citizen. An “from officer’s the actions perspective must of be a judged reasonable officer on consideration the of scene,” the with fact that “officers split-second decisions about are the amount of force necessary in often a par- forced to make ticular situation,” the Court said. . R 186. 187. 185. XEC lethal force, due to poor training procedures.practices manual issued by For the example, Police Executive a Research Forum best- ut- terly fails to mention teaching officers constitutional restraints on use of force. scribes only the broad “objective reasonableness” holding of the 1989 Graham v. Conner the manual’s discussion of constitutional restraints on use of force de- simply not being given adequate use-of-force instruction that focuses on the importance of E sues_Series/an%20integrated%20approach%20to%20de-escalation%20and%20minimizing%20 use%20of%20force%202012.pdf. 46 [ hope, doubtful, that some rogue law enforcement departments are in- tentionally allowing police to remain confused about the limits of permissible lethal force to enable defenses. future qualified immunity or Howard Law Journal C. Instilling Best Practices for Constitutional Policing Beyond officers who seem ill-trained in the constitutionally prohibited use of lethal force, what explains the lack of Constitution-focused training on this front? What could explain who have killed why unarmed men of color in the a past year have indicated significant number of police that they felt their actions were justified? It is possible, but, one would \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 42 10-FEB-16 11:01 37050-how_59-1 Sheet No. 26 Side B 02/15/2016 09:02:40 02/15/2016 B 26 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 27 Side A 02/15/2016 09:02:40 OLICE 191 , and , P note 186, . A best- supra , 189 Out of Breath Graham v. Connor restrictions on the use of , without any correspond- Tennessee v. Garner Garner This is the case despite a chapter Graham 190 . limitations on lethal force, can lead to precedent, while summarizing it in such vague Garner (Apr. 2007), http://www.policeforum.org/assets/docs/Critical_Issues_ ORUM Graham F Tennessee v. Garner 188 at 37. ESEARCH See generally Strategies for Resolving Conflict and Minimizing Use of Force Id. Id. An Integrated Approach to De-Escalation and Minimizing Use of Force Similarly, in a longer book produced by Police Executive Re- That’s it. No further description whatsoever of the standard for Such a blatant omission of the upon “the facts and circumstances confronting [the time].” officer at the . R 190. 189. 191. 188. M K XEC at 36–37. practices manual disseminated nationally to police forces that encour- ages use-of-force training based on of the book being devoted to the issue of lethal force by police. dangerous misconceptions by police that the use of force against fleeing, unarmed suspects is constitutionally permissible and acceptable. If acted upon, such dangerous misinformation will inevitably result in the types of tragic police killings that have become all too place common- in this country. search Forum, written to guide training, police and comprised departments of over in a dozen use-of-force articles describing methods different of implementing use-of-force practices and instruction, not one word is given to the constitutional force under restrictions on use of lethal limitations of lethal force articulated in ing discussion of the E Series/strategies%20for%20resolving%20conflict%20and%20minimizing%20use%20of%20 force%202007.pdf. 2015] 47 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 43 10-FEB-16 11:01 lethal force is troubling, particularly when the manual more does general cite the rate and grossly insufficient description of constitutional upon constraints use of force, the manual describes its best-practices solution for preventing excessive police force in the following terms: ficers to understand “Teach the ‘objective reasonableness’ standard of- for use of force articulated by the Supreme Court in and subjective terms that one would never gather that from the the passage Supreme Court has clearly fleeing unarmed and prohibited non-dangerous suspects. lethal Repeating force this inaccu- against train them to be able to clearly and accurately articulate their reasons for any use of force, in writing, following an encounter.” C Y 37050-how_59-1 Sheet No. 27 Side A 02/15/2016 09:02:40 02/15/2016 A 27 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 27 Side B 02/15/2016 09:02:40 , M K 193 C Y . 59:5 (2004), VOL , May 4, 2014, OUNCIL C IMES TUDIES Beyond the Tueller Drill: , N.Y. T S OLICY Since the article that for- P 195 194 OLICE adequately, when a leading na- , P Michael D. Janich, See The “21-foot rule,” a popular maxim that lethal 192 How Close is Too Close? Tennessee v. Garner note 193. Police Rethink Long Tradition on Using Force (Nov. 1, 2008), http://www.policemag.com/channel/weapons/articles/2008/11/ supra Wilson explained that he chased after Brown, repeatedly yell- AGAZINE M It appears that, at least in the case of Michael Brown, the 21-foot Is it any wonder that police training in some parts of the country In lieu of meaningful Constitution-focused training on the limits ing at him to stop and get on the ground. Brown kept running, but when he was about 20 to 30 feet from Wilson, abruptly stopped, and turned around toward Wilson, appearing “psychotic,” “hostile,” and “crazy,” as though he was “looking through” Wilson. While making a “grunting noise” and with what Wilson intense aggressive described face” that as he had the ever seen “most on a person, Brown then made a hop-like movement, similar to what a person does 194. Dennis Tueller, 195. Apuzzo, 193. Matt Apuzzo, 192. The training and implementation of which is also known as the “Tueller Drill,” after the OLICE at A1. http://www.theppsc.org/Staff_Views/Tueller/How.Close.htm. There Are Ways to Bring a Gun to a Knife P Fight, But You Have to be Practical and Prepared mulated the 21-foot rule was first published, the rule “has been taught in police academies around the country, accepted by courts and cited by officers to justify countless shootings.” rule was at the forefront of Officer Darren Wilson’s mind during his investigation statements, in which he emphasized his fear of the young man in the same breath that he distance he emphasized claimed stood between him and the Brown when he shot him: 20-feet-and-closing beyond-the-tueller-drill.aspx. 48 [ The rule has become a standard measure of permissible lethal force by police since 1983, when, in what has been described in police circles as a “timeless classic,” a SWAT magazine article (now available on the Police Policy Studies Council’s website) feet estimated is that the twenty-one distance at which Zone and an become a lethal threat to adversary you.” can “enter your Danger Howard Law Journal may fail to teach \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 44 10-FEB-16 11:01 man who coined the phrase and principle. force may, and should, be used when a target is within twenty-one feet of the officer, has become dogma in the law enforcement world. tional organization for the development of best-practices manuals for police fails to mention the critically important Supreme Court case? of permissible lethal force, some officers may also be encouraged cling to to what may feel like an easier and more straight-forward rule: the “21-foot rule.” 37050-how_59-1 Sheet No. 27 Side B 02/15/2016 09:02:40 02/15/2016 B 27 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 28 Side A 02/15/2016 09:02:40 (CNN Out of Breath note 42, at 14–15. supra , 198 (CNN television broadcast Nov. 22, 2014, 8:00 Similarly, criminal defense attor- ROWN 197 B ICHAEL M HOOTING OF S 196 EPORT ON Anderson Cooper 360 Degrees: Presidential Call for Calm as People in Ferguson, Mis- The Lead with Jake Tapper: National Guard Leaving Ferguson; Holder Assures Family While the 21-foot rule may have been widely accepted at a local Following the shooting, a number of commentators appear to doesn’t give officer Wilson the right to shoot Michael Brown if he’s not a threat. (CROSSTALK) O’MARA: It Brown’s fear as—officer Wilson’s fear as what he might expect does, from however, heighten Brown if he’s been aggressive officer to an officer, number one. And number two, don’t forget that cops are trained within 20 get feet to they you can and hurt you before you can react. So that that cops 21-foot have rule is there for a reason. ple shots. TOOBIN: [J]ust because there was a confrontation at the car, that when he starts running. Brown then started running at Wilson, closing the distance between them to about 15 feet. that Wilson he explained again feared for his life, and backed up as Brown came toward him, repeatedly ordering ground. Brown failed to comply and Brown kept coming at Wilson. Wilson to stop explained that he and knew if Brown reached him, he “would be done.” get on the During Brown’s initial strides, Brown put his right hand in what ap- peared to be his waistband, thought Brown might be reaching for a albeit weapon. Wilson fired multi- covered by his shirt. Wilson 197. 198. 196. R M K souri and Across the Country Wait for Obama’s Word Executive Order; Allegations of against Bill a Cosby First Grand Brought Decades Ago; Jury; Exoskele- Latin Community tons Make Walking Possible Reaction for Paralyzed People to PM) (transcript available at http://www.cnn.com/TRANSCRIPTS/1411/21/acd.01.html). Of Fairness; Controversy Over St. Louis Shooting; U.S. Refused To Pay Ransom for Foley television broadcast Aug. 21, 2014, 4:30 PM) (transcript available at http://www.cnn.com/TRAN- SCRIPTS/1408/21/cg.02.html). ney Mark O’Mara, explaining his perspective of the Ferguson shooting on the Anderson Cooper show, did so in terms of the 21-foot rule: law enforcement level, it has not been addressed even in passing by think that the 21-foot rule was a central factor in the shooting as well. For example, Bill Johnson of the National Association of Police Orga- nizations, when asked for shooting, his explained: “The perspective general rule on of the thumb country is keep firing everywhere until the threat Michael is stopped. in . . . You can be the up to Brown 20 feet away and close within just a second or two close that. That’s all the time the officer has to react.” 2015] 49 \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 45 10-FEB-16 11:01 C Y 37050-how_59-1 Sheet No. 28 Side A 02/15/2016 09:02:40 02/15/2016 A 28 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 28 Side B 02/15/2016 09:02:40 M K C Y . 59:5 VOL involved Walker , we also found fact and , the totality of the cir- , we concluded summary Zuchel Walker and when that individual comes within 21 Among United States Court of Appeal 199 Zuchel Walker v. City of Orem Zuchel v. Spinharney In contrast, the Tenth Circuit, for example, has been careful In a second case, In the first case, Appellant relies on two cases involving fatal police shootings. with an edged weapon 200 reasonably perceived a threat. Eyewitnesses contested the degree of danger facing the officer at the time deadly force was exercised. Ad- mittedly, one of the disputed facts in the distance between the officer and the decedent, but while dis- decedent to drop his weapon. questions remained regarding the level of threat facing officers responding to a knife-wielding suspect. One fact supporting sence of the a threat was the ab- distance of more than 21 feet between the officer and the decedent. But the plaintiff also presented disputed evidence that the scene was bright enough for officers to see clearly, that the decedent’s weapon was a holding against two-inch his own blade, wrist, that which the officers he issued no was warnings, that the decedent was not behaving aggressively and was not facing the officers, and that officers knew the decedent not was homicidal. suicidal In both but cumstances presented a factual dispute about whether the officer stances, but neither supports the proposition that any particular distance makes the use of force unreasonable. judgment was improper where disputed facts called the into immediacy of question the threat facing the officer. One witness, for example, claimed that the distance between the officer wielding and decedent was a only knife- three and a half feet. But another witness testified the officer and the decedent were 10 to 12 feet apart at the time of the shooting. Other factual disputes the involved officers whether could reasonably think the decedent was armed he in fact when was holding fingernail clippers, whether the decedent had made a stabbing motion, and whether the officers had warned the These cases illustrate why we consider the totality of the circum- 199. A search of law review and journal articles and Supreme Court cases conducted on 200. Sigman v. Town of Chapel Hill, 161 F.3d 782, 788 (4th Cir. 1998) (emphasis added). to explain that distance is just one factor to be evaluated in determining whether lethal force is permissible: Circuits, only the Fourth Circuit has accepted the 21-foot rule lowing an as officer to “use al- deadly force to stop a threatening individual armed feet.” 50 [ Howard Law Journal Supreme Court decisions. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 46 10-FEB-16 11:01 Westlaw on May 6, 2015, reveals no articles or Supreme Court cases addressing the 21-foot rule at all. 37050-how_59-1 Sheet No. 28 Side B 02/15/2016 09:02:40 02/15/2016 B 28 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 29 Side A 02/15/2016 09:02:40 , (May 6, Woodward , WL 36906, , WL 36906, EWS Both cases, Out of Breath , ABC N Woodward Woodward 202 . O’Keefe has predicted 208 , 253 F. App’x at 917–18; , 253 F. App’x 916, 917–18 (11th Cir. 2007) , 253 F. App’x at 916, , 253 F. App’x at 916; 204 Brown 2 Brown 2 Brown 2 Law Enforcement Analysts Suggest Changes to Police Tennessee v. Garner However, both decisions are also unpub- “It’s a guideline not a rule. But if that’s not 203 . aff’d on other grounds 207 note 193. 209 but is merely a construction of a single SWAT maga- supra Garner 205 that has been elevated in prominence in police training 201 , 2007 WL 4730648, at *37–40; , 2007 WL 4730648, at *1; , 2007 WL 4730648, at *1; 206 Apuzzo, Id. Id. Brown 1 See Brown 1 Brown 1 There are a number of problems with the 21-foot rule in addition Only two cases among all the federal and state opinions com- tance is one factor in assessing the immediacy of threat, it is not the only one. 208. 209. 201. Estate of Larsen v. Murr, 511 202.F.3d 1255, 1262 (10th Cir. 2008) (citations omitted). Luke v. Brown, No. 1:05-CV-264-CAP, 2007 WL 4730648, at *13–14 (N.D. Ga. Feb. 23, 207. Meghan Keneally & Evan Simon, 203. 205. 206. 204. M K that the NYPD curriculum, at least, will be “more detailed” in how it teaches the 21-foot rule, without made elaborating in particular. what changes will be through cursory discussions, have summarily concluded that the policy is in line with 2015, 7:32 changes-to-police-training-302735961.html?llsms=1165741&c=y. AM), http://www.21alive.com/news/top-news/Law-enforcement-analysts-suggest- to a perhaps unwarranted degree.New former the O’Keefe, James As York Police Department Deputy Commissioner for Training has explained, the 21-foot rule has been used as a guideline for decades assist police in deciding when to to use lethal force against armed attack- ers, with “[p]retty much every teaching it in their police curriculum, but there department are risks of in improper teach- the ing of country” the guideline. taught properly, some young cop could shoot a guy and he could find himself in civil and or criminal trouble.” zine article to the fact that the rule has never been examined in any legal scholar- ship or Supreme Court decision, or endorsed in any published federal court opinion, bined that have examined the 21-foot rule have done so in light of the constitutional limitations of 2015] 51 lished lower federal court decisions. \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 47 10-FEB-16 11:01 2007) [hereinafter Brown 1], Training: Law Enforcement Analysts Suggest Changes to Police Training [hereinafter Brown 2]; Woodward v. Town of Battleboro, No. 1:02CV35, 2006 WL 36906, at *6–7at 36906, WL 2006 1:02CV35, No. Battleboro, of Town v. Woodward 2]; Brown [hereinafter (D. Vt. Jan. 5, 2006). at *1. at *1. WL 36906, at *22–23. C Y 37050-how_59-1 Sheet No. 29 Side A 02/15/2016 09:02:40 02/15/2016 A 29 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 29 Side B 02/15/2016 09:02:40 M K C Y , not . 59:5 VOL threat 212 , however, is one of physical . Thus, distance as a proxy for danger creates not The mere proximity of a person does not create a note 193. 210 . Tennessee v. Garner, 471 U.S. 1 (1985). Garner The Washington Post reports that “[s]everal big-city po- supra 211 distance Tennessee v. Garner See generally Id. In so doing, and in reevaluating better police practices to replace In recent cases, including those described in this article, it increas- Thus, perhaps the most fundamental problem with the 21-foot A growing number of law enforcement departments across the 210. 211. Apuzzo, 212. lice departments are already re-examining when officers should chase people or draw their guns and when they should back away, try wait to or defuse the situation,” and are considering, than going the even NYPD, farther abandoning the 21-foot rule. forcement departments would do well to ground future trainings use-of-force in Constitution-focused practices mandated by the well tablished es- Supreme Court, not fallible rules developed by SWAT magazine contributors. excessive-violence-enabling axioms like the 21-foot rule, such law en- 52 [ rule, in the end, is that it may have become a substitute in the minds of some officers for the actual constitutional limitations on use of force. If an unarmed suspect, for example, is running away from an but still officer within twenty-one feet, it may be the case that the officer will erroneously, and fatally, believe that shooting would be constitutionally permissible because the person is within twenty-one feet. The test under Howard Law Journal ingly appears that the 21-foot rule, rather than being a limited guideline confined to cases involving actual weapons, has been extended to cases where the only “weapon” perceived by officer perceives is a threatening posture by the defendant (such as the an officer is what the “charging” stance Wilson described turning Michael around, albeit while still Brown unarmed). making upon \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 48 10-FEB-16 11:01 threat where the person is unarmed, fleeing, and otherwise non-dangerous under physical officer’s raised firearm. country have begun to call for internal reforms that reassess both the value of the 21-foot rule and other rules of practice that emphasize the permissibility of force rather than how to defuse situations. potentially violent only a false sense of immunity against also a very real threat of danger for those within twenty-one prosecution feet of an for officers, but 37050-how_59-1 Sheet No. 29 Side B 02/15/2016 09:02:40 02/15/2016 B 29 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 30 Side A 02/15/2016 09:02:40 only Tennessee v. Out of Breath . Finally, if such targets of CONCLUSION Tennessee v. Garner than others), stepping outside can feel like a game of Russian Young black men confronted by the types of police who are gov- It doesn’t have to be like this. It was not so long ago that police officers were often described as M K against them. If they run while away being shot at, they risk being killed like Michael Brown. and Even if then turn around at any unarmed black men point are careful not to turn around, as Brown did, lest they be accused of “charging,” they may Harris still and Walter Scott were. be shot Such is dead, the cruel reality as resulting from Eric police standards that excuse police from carefully assessing a situation before engaging in lethal violence, and from employing the constitutional constraints of erned by hot-headedness rather than by constitutional restraints face an impossible choice. If they stay within an officer’s grasp, or the within twenty-one feet that many police count line rule as authorizing lethal establishing force, they risk a being killed like bright Eric Gar- ner, Tamir Rice, John Crawford, III, and Samuel DuBose, no matter how little an actual risk they pose to the officer exerting deadly force \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 49 10-FEB-16 11:01 driven policing; and that works with, whom our peace officers not are sworn to protect and against, serve. the While much communities of the needed reform will take substantial critical fix is time easily accessible and and must be resources, implemented immediately: one civilians and police alike across the country must be taught in no un- certain terms that the use of deadly force by police is permissible “where the officer has probable cause to believe that the suspect poses 2015] 53 mortal injuries on their way to jail. In urban communities where certain police officers seem more others (and trigger-happy oblivious to and the hot-headed constitutional mandates than of Garner roulette to young black men. “peace officers,” for their role in keeping the peace in our communities. There is a reason that phrase is seldom heard today, and yet, we should not lose sight of the potential for resilience and a police new reform: era of one that weeds out the bad cops has from a the zero-tolerance policy good; for that unconstitutional brutality and racism- police chases are caught alive after running away from the police, as Freddie Gray was, they risk being arrested with no probable cause of a crime, merely because they fled, and then still being inflicted with C Y 37050-how_59-1 Sheet No. 30 Side A 02/15/2016 09:02:40 02/15/2016 A 30 Side No. Sheet 37050-how_59-1 37050-how_59-1 Sheet No. 30 Side B 02/15/2016 09:02:40 M K 213 C Y Ten- . 59:5 VOL note 22, at 13. supra , EPORT , police training is dangerously inadequate. Any po- R , 471 U.S. at 11 (emphasis added). 214 LEVELAND Garner This proposal may be a small piece of the police reform puzzle, To the extent that any police department fails to emphasize these 214. C 213. our justice system. nessee v. Garner lice reform must place a greater focus on constitutional limitations on permissible violence, particularly in the context of clarifying when lethal force may not be used, including against those police. fleeing from the but its importance is immense. Today, urban more civilians reason than ever to of run from police, but, color sadly, have been killed have far too often in the past year for doing so. As long as those the who flee police are viewed as deserving whatever they get, whether death or arrest, innocent lives are at peril, as is the constitutional integrity of constitutional limitations on permissible police force, too many lives are placed in unacceptable danger. To the extent that the 21-foot rule or similar standard has become the primary measure lethal of police force, permissible rather than the constitutional constraints of 54 [ Howard Law Journal a threat of serious physical harm, either to the officer or to others,” and thus, “deadly force is not justified . . . against unarmed or fleeing suspects who do not pose others.” a threat of serious harm to officers or \\jciprod01\productn\H\HOW\59-1\HOW106.txt unknown Seq: 50 10-FEB-16 11:01 37050-how_59-1 Sheet No. 30 Side B 02/15/2016 09:02:40 02/15/2016 B 30 Side No. Sheet 37050-how_59-1