Is Racial Justice Possible in America?

Is Racial Justice Possible in America?

Is Racial Justice Possible in America?

We need law and policing reform, but first we have to want to end state-sanctioned violence against African-Americans.


As the countless protests, tear gas, National Guard deployments and looting proved, police brutality provokes more anger than other outrages because it’s the supreme violation of our individual rights in a democracy. It is the state actor, as another person, violently snatching our breath away “under color of law.” That the state’s victims throughout our history have been overwhelmingly African-American stamps it as an indelible “badge of slavery,” which means that nothing makes you feel more black in America than experiencing police mistreatment. Very few modern oppressions convey the permanence of racism—individual and institutional—like the ritual of unpunished police abuse.

Yet despite this, not even black people dared show surprise when a grand jury in St. Louis County, Missouri, couldn’t find probable cause to indict Officer Darren Wilson for shooting dead an unarmed black teenager, Michael “Big Mike” Brown, in August. When, right after the announcement, the first black president of the United States awkwardly assured us that ours was a nation of laws, it was as if the cynical thought was proclaimed official truth: the law will never subject police brutality to justice. Ever. Surrender to the fact.

A New York grand jury’s refusal to indict the officer whose videotaped choke hold—a practice banned by the NYPD—caused the death, according to the medical examiner, of Eric Garner, another large black man, signals yet again that his resistance, and ours, is futile.

Surrender is the heart of the legal standard for the use of deadly force by police. When confronted with an officer’s weapon, you must back down quickly and unambiguously or die. The law demands surrender, and men like Michael Brown do not show enough of it. This terrible fact—a one-sided battle of stereotypes and a conversation cut short between two young men—leaves us to wonder what justice would be in cases like this.

Lost in the accounts of how St. Louis County prosecutors defended the accused, ridiculed their own witnesses and then dumped a sea of grand-jury documents on the public is a legal standard for police use of deadly force that would have made a trial conviction difficult, but not impossible. Mike Brown had been running away from Officer Wilson. Missouri is one of a handful of states that took a 1985 Supreme Court decision on shooting fleeing suspects, Tennessee v. Garner, to the extreme.

Cops in St. Louis County may use deadly force to stop a fleeing suspect when they reasonably believe two things. First, the officer must believe it’s “immediately necessary” to stop him or her; second, the officer must tie that belief to whether the suspect has committed a felony, is using a deadly weapon, or may endanger life or inflict serious injury. Only one of the three conditions even includes the suspect being armed.

The law in Missouri doesn’t have to make indictment so difficult. It could say “may use force only in rare circumstances,” which would guide a police officer’s judgment toward the value of preserving life at all costs. It could emphasize life over death with adjectives that emphasize the suspect must be a “verifiable” or “demonstrable” threat. It could single out unarmed suspects for mercy. As it is, the law does not imagine innocence or urge de-escalation. Instead, it’s a vague and malleable standard that privileges police justification and promotes narratives that render even the innocent justifiably dead.

The legal standard doesn’t merely determine convictions. It frames the stories that prevent trials in the first place. In the death of Brown, the grand-jury proceedings became a familiar battle of stereotypes: the maniacally possessed, sub/superhuman black kid versus the hyper-authoritarian, hotheaded, racially threatened cop. Law and culture intersected to ensure it was not a fair fight.

Whether or not his account is true, Wilson—to avoid trial—had to establish that he did nothing wrong, that he had a good basis to believe Brown was a criminal, that Brown was the aggressor at every phase, and that even after shooting him, any reasonable officer would have kept shooting at this charging, angry giant in order to avoid death. In his view, he rightfully demanded surrender and got none—or, at most, an unacceptably ambiguous response—from Brown. Indeed, trained in Missouri legal standards, coached by his lawyers and helped by gentle prosecutors, Wilson gave an account that leaves absolutely no doubt about the correctness of his actions on August 9. It’s a perfect narrative of exoneration.

In Wilson’s version of the initial encounter, he’s polite—“Why don’t you guys walk on the sidewalk?”—while Brown is profane: “Fuck what you have to say.” Wilson, contradicting multiple accounts, claims to know that Brown has probably just committed a felony. (Brown is plainly carrying the cigarillos he stole from a convenience store, but Wilson never asks about them.) In Wilson’s story, Brown immediately becomes an aggressor with a death wish, beating up the cop through the police truck window, frightening him, reaching for his gun, all with a “demonic” look on his face.

None of this is questioned by prosecutors. In fact, they keep Wilson on track, making sure the jurors understand at what critical points Wilson feared for his life.

In his version of the fateful foot chase, Wilson does not fire his weapon until Brown suddenly turns around and “charges” him. Brown makes a fist, shows the demonic face again, reaches under his T-shirt as if for a weapon and continues to charge, superhuman-like, even as Wilson is firing his gun at him. Brown’s pure zombie rage appears unstoppable. It is almost too magical for even Wilson to believe: “[Brown’s] whole reaction to the whole thing was something I’ve never seen,” he testified. “I’ve never seen that much aggression so quickly from a simple request to just walk on the sidewalk.”

Wilson’s is a story of how he became a victim of a monstrous young man. To support the monsterization of Brown, the prosecutors gratuitously offered a hypothetical marijuana theory based on a witness’s innocuous reference to “waxing,” a method of smoking that was unknown to Brown (and probably everyone else) but, forty-four references later, a useful suggestion linking his prior pot use with a bloodlust for cops.

* * *

Why is this about culture as well as law? Because culture makes legally credible the same hackneyed tropes about suicidal black male conduct against the police that Richard Pryor joked about in the 1970s. Cultural associations teach our brains how to think in stereotypes, even when common sense would suggest otherwise. Maybe Michael Brown really did lose his mind at the sight of Officer Wilson, despite multiple witnesses who disagreed. Normally, a trial decides the truth. But a compelling story rooted in stereotypes may circumvent that.

Of course, culture weighs in from the other side, too. Social science is replete with stories of how people in marginalized—in Wilson’s words, “not very well-liked”—neighborhoods such as the Canfield area of Ferguson experience the police and how the police view them. A lot revolves around the circumstances of the encounter between Wilson and Brown that day. Mutual hostility characterizes most interactions, and many more occur within the context of order-maintenance policing—“broken windows” stuff like jaywalking enforcement.

The problem, as one study puts it, is one of police legitimacy—that is, do people stopped by police feel they are being treated fairly and with the respect necessary for effective law enforcement? The answer for most young black men is no—they feel arbitrarily harassed, insulted and degraded. Police violence is not uncommon.

As one St. Louis teenager interviewed for the study said, “We look thuggish, so [the police] treat us like thugs…. But if you grew up in a perfect neighborhood, the [police] treat you like you’re a human being.” Black men’s perceptions were the same for both law-abiding and law-violating subjects; the police saw them in the same light.

Other recent studies show how police officers’ routinely negative perceptions of young black men reveal layers of implicit bias. Officers act on antagonisms and assumptions of criminality of which they’re unconscious. These discoveries help explain a phenomenon perhaps at the bottom of the fatal encounter, the practice of racial profiling in St. Louis and the grand jury’s unwillingness to indict: dehumanization.

Generations ago, black scholars used to write of the invisibility of the Negro. The concern now isn’t that Michael Brown could not be seen, but that the figure Wilson described for the grand jury could not be recognized as fully human. Forgotten in the monster narrative is that Brown had no criminal record and was to begin college two days after his death. That there were gaps and inconsistencies in witnesses’ accounts is precisely what trials decide. In an analysis of the grand-jury testimony by PBS, eleven out of fourteen witnesses believed that Wilson shot at a fleeing suspect. Twelve of fourteen said Brown’s hands were raised when he was fired upon. Five said Brown charged the officer, while four said he did not. We should be surprised that Wilson was not at least indicted.

And then there is the counternarrative offered by Dorian Johnson, the only other eyewitness to the entire encounter, who can provide important context, yet whose version has been overshadowed by Wilson’s. Johnson’s story supports another stereotype, that of the outsider policeman who demands complete surrender to his authority and gets mad—violently mad—when it doesn’t follow.

According to Johnson, Wilson tells them to “Get the fuck on the sidewalk” (again, nothing about cigarillos or the convenience store). When they don’t immediately comply, he whips his truck dangerously backward, almost bumping them, opening the door so violently it bounces against both young men and closes again. “What did you say?” Wilson says, obviously angry. From the window, he then grabs Brown around the neck and the scuffle ensues.

With Johnson describing Wilson as the aggressor who initiates the assault, the prosecutors interrupt Johnson’s account for twenty transcript pages before he is allowed to go on. The prosecution wants to discuss Brown’s “defiance” in walking down the middle of the street, but Johnson wants to describe the policeman’s anger. “After [Wilson] pulled [his truck] back, there was no more sidewalk talk, there was nothing, it was just anger.”

Again, the prosecutors interrupt to go back in time and ask why Johnson, a good guy, a neighborhood mentor, would continue to hang out with a “brash,” “threatening,” “macho” guy such as Brown. “He owns the street right there, right, kind of?” asks Kathi Alizadeh. But Johnson won’t follow the prosecution’s new narrative. Nor does he believe he was obligated to pay for the cigarillos Brown stole, as Alizadeh oddly suggests.

To Johnson, the hothead in the encounter remains clear—Officer Wilson—and the logic familiar. “Just basically trying to, like he was trying to pick up a kid or something like that,” Johnson said. “It is still, the whole ordeal, more still looking like chastisement from a father to a son type of deal.” Rather than aggressing, Brown was trying to prevent the cop from shooting him and ran when he got the chance, Johnson said. Johnson testified that Wilson shot at Brown while he was running away and killed him as Brown stumbled toward him with hands raised, trying to surrender, telling him he had no gun, angry that the cop kept shooting. To Johnson, Wilson demanded Brown’s total surrender to his authority and was unwilling to accept it when it came too late.

These dueling narratives are clearly enough for probable cause, and a trial should have followed. We would have heard testimony of the crazed giant black aggressor versus the paternalistic cop who expected childlike submission. We would learn whether Brown legally surrendered enough to remain breathing.

In the end, Wilson might have been acquitted, and many of us still would have demanded justice under the law. It’s that probability that complicates the question of what justice is in police-brutality cases.

* * *

We probably don’t need another national conversation about race as much as we need one about law reform. And let’s be clear: justice is far from impossible to imagine. What’s required is more constructive policing methods to rebuild trust:

§ Cops must wear cameras and microphones to preempt exculpatory storytelling.

§ Cops must be well trained in avoiding implicit bias, so they don’t dehumanize the public they serve. In fact, judges should be urged to allow juries to hear evidence of implicit bias among police officers.

§ Police departments must finally keep reliable records on their use of deadly force so we can stop guessing at the numbers.

§ Prosecutors should more aggressively seek manslaughter charges rather than murder charges, so that lethal mistakes don’t go unpunished.

§ The appointment of special prosecutors in questionable cases should be routine, to avoid the conflict of interest between prosecutors and police.

And when the local politics are insurmountable, we need an amended federal statute with a legal standard that cherishes the protection of life—the greatest civil right. These reforms would bring a lot less shooting and a lot more accountability. That would bring us closer to justice.

But first we have to want this bloody ritual to end. We have to want to end police brutality as much as we want to end pedophilia. Police brutality, along with rape and domestic violence, has to become one of those issues that the law treats like terrorism.

It all goes back to something Johnson said about the hours before Wilson arrived. He and Brown were walking around the neighborhood, the older man a mere five-foot-seven, the younger one, six-foot-six. Shortly before Big Mike Brown lay dead in the hot August street, he was asking his older friend about how to make a life as a man.

“We were talking about future goals and stuff like that, what we were planning on,” Johnson testified. “And basically he is asking me questions on how I did transform to coming from where I was and getting on track and now I have my own apartment and stuff like that. I was just telling him a few things that I went through in my life that made me change…. I’m telling him about my life story and how I come up from a bunch of tragedies.”

Justice is being able to finish that conversation without any question of surrender. Like Tamir Rice (age 12), it is being able to play with a toy gun without the lights going out two seconds after a squad car reaches the park. Like John Crawford III (22), it is the freedom to talk on your cellphone and shop for a Walmart air rifle without being ambushed. Like Akai Gurley (28), it is being able to take the darkened stairwell when the elevator won’t come. Like Eric Garner (43), it is being able to sell loose cigarettes yet keep breathing. The only thing these human beings have in common, other than their race, gender and recent killing by police, is that they did not surrender fast enough.

Humanity is sometimes the right to do the small things in life uninterrupted.


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