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.