Does Fear of Black Men Satisfy the "Objective Reasonableness" Standard?

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Does Fear of Black Men Satisfy the "Objective Reasonableness" Standard?

The case that set the standard on when police officers are justified in using excessive force is Graham v. Connor. But how that standard is applied needs deep consideration.

Enough of these killings have happened to unarmed Black people that citizens can and should begin to ask more serious questions about circumstances that justify police officers using deadly force against citizens. (Photo: Screenshot/Police footage)

Another video. Another police shooting. Another Black person body dead on an American road.

Every person is innocent until proven guilty.

That is true for Betty Shelby, the police officer who shot and killed Terence Crutcher in Tulsa, Oklahoma on September 16, 2016.

"What did Terence Crutcher do to justify a death sentence?"

It also should have been true for Terence Crutcher.

So what did Crutcher do to justify a death sentence?

Legally, we have to ask two questions. What did Crutcher do to cause Shelby to fire her weapon at him? And according to established legal precedent, was Shelby’s shooting justified?

We do not know enough information to answer those questions. An investigation needs to uncover what Shelby, or the other police officers, told Crutcher, and what Crutcher did, during the moments before Shelby fired her weapon.

Enough of these killings have happened to unarmed Black people that citizens can and should begin to ask more serious questions about circumstances that justify police officers using deadly force against citizens.

The case that set the standard on when police officers are justified in using excessive force is Graham v. Connor. In the 1989 Graham decision the Supreme Court held that a standard of “objective reasonableness” determined if a police officer’s actions while making an arrest, issuing a search and seizure warrant, or making a stop, violated a citizen’s fourth amendment rights. The summary of the Court’s ruling explains,

“The Fourth Amendment ‘reasonableness’ inquiry is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

So, how can the shooting and death of Terence Crutcher stand up to legal scrutiny according to the "objective reasonableness" standard set in Graham?

Exceptions to Fourth Amendment protections against search and seizure, in this case excessive use of force in an arrest, have to satisfactorily apply “objective reasonableness” to at least three criteria: (1) did the arresting officers already have the apprehended person subdued by other means; (2) was the apprehended person attempting to flee; (3) were there exigent circumstances that required force beyond that which an objectively reasonable police officer would need to apply in that situation. Perhaps most important in understanding the Graham decision: the “objective reasonableness” standard does not take into consideration intent or motive. As Chief Justice Rhenquist said in the Supreme Court’s ruling, “objective reasonableness,”  also cannot consider, “the 20/20 vision of hindsight.” It has to deal with the facts of the situation. It has to ask if an officer’s use of force was objectively reasonable in any and all such situations.

"If allowances for excessive force according to the Graham holding are applied in discriminatory fashions – if these allowances apply when arresting officers consistently use excessive force on people from certain races, colors, regions, or economic classes, but not on others – than those practices may violate the Fourteenth amendment, and possibly the Civil Rights Act."

In short, would another, objectively reasonable officer, in the exact same situation do the exact same thing? 

Based on video evidence, before Officer Shelby shot Terence Crutcher – or simultaneously as she shot him – Crutcher had already been shot with a taser gun by one of the officers on the scene.

The video makes clear that Crutcher was walking back to his car.

His hands look raised.

“That looks like a bad dude, too,” said one police officer who observed the scene unfold live. “He could be on something.”

The video shows at least four officers on the scene. Early details from the investigation indicate the officers claiming that Crutcher attempted to reach into his car before Shelby shot him. The video’s footage is inconclusive on that issue.

Whether or not, or how, these officers will answer for Crutcher’s death hinges on application of the holding in Grahm.

Did Officer Shelby have reasonably objective grounds for applying additional, deadly force according to the criteria through which investigators use the Graham holding to determine justified uses of force: was the suspect already subdued; was the suspect attempting to flee; did exigent circumstances demand excessive force?

That third criterion – exigent circumstances – is the one where arresting officers literally get away with murder. A police officer can claim fear for his safety, or the safety of his fellow officers, or other citizens. This claim usually passes scrutiny when an officer is alone. In this case, Officer Shelby was surrounded by several other officers.

So this situation begs the question: on what objectively reasonable grounds did the officer require using deadly force to subdue Terence Crutcher? What made Crutcher a “bad dude?” Did his size, color and sex factor into that assessment? Does a Black male, walking towards a car, with hands raised, engaged by four trained police officers cause a level of fear that warrants deadly force? Are these objectively reasonable conditions to justify a death penalty?

This is a question that concerns the entire nation.

If widespread violation of a fundamental Constitutional right (the Fourth amendment) continuously occurs to citizens, this issue is bigger than either the personal experiences of law enforcement officers, or individual citizens.

The Fourth Amendment exists to protect everyone.

If violations of it result in wrongful deaths, it is incumbent on all citizens to know when, where, how, and why that happens, and what we can do to fix it.

If allowances for excessive force according to the Graham holding are applied in discriminatory fashions – if these allowances apply when arresting officers consistently use excessive force on people from certain races, colors, regions, or economic classes, but not on others – than those practices may violate the Fourteenth amendment, and possibly the Civil Rights Act.

Objectively reasonable fears for an officer’s safety exist.

But such a standard cannot become shields to protect against murder or brutality or coercion.

That is not a nation ruled by law and order.

It is a nation ruled by fear-driven deadly force.

And that is not a nation in which anyone should live.

Brian Purnell

Brian Purnell teaches Africana Studies and History at Bowdoin College. His main areas of research and teaching are the Civil Rights movement, urban history, and African Americans and the law.  

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