| Abstrakt: |
This Article series argues that the U.S. Supreme Court's excessive force jurisprudence from Graham v. Connor1 to the present has undermined the objectivity of the reasonableness standard. In its place, the Court has erected a standard that reflects modern conservative political ideology, including race conservatism, law-and-order, increased police discretion, and the deconstruction of the Warren Court's expansion of civil rights and civil liberties. Indeed, the Court, dominated by law-and-order conservatives, is one of the greatest triumphs of modern conservatism, which developed as a backlash against various social movements like the Civil Rights Movement in the 1960s and the spontaneous urban rebellions that characterized the decade. Politicians like Barry Goldwater and Richard Nixon offered a regressive response to Black demands for economic, social, and political equality and an end to oppressive policing. The response was considered radical at the time because it endeavored to haul the United States back to the days before Brown v. Board of Education2 was decided in 1954. Nixon called for "law and order" during his successful bid for president of the United States in 1968, using the slogan as a short form for the subjugation of disgruntled people--particularly Black people--back to their pre-Civil Rights era places. This "law and order" slogan was the primary social weapon for Nixon's "southern strategy," an appeal to race-prejudiced whites in the South disgusted with the civil rights gains for Blacks and to paranoid whites in the North, Midwest, and West afraid that African Americans would ravage the entire country. After successfully deploying the southern strategy, Nixon and a series of race conservative presidents from Ronald Reagan to Donald Trump set out to place "law and order" on the Supreme Court. They were wildly successful. Once a quasi-objective standard, the Supreme Court's excessive force standard is now almost wholly subjective. The Supreme Court often uses facially objective language: the officer's actions must be judged from the perspective of "the reasonable officer on the scene."3 However, the Court then adds language that it excludes in other contexts involving objective reasonableness tests.4 The Court prohibits the use of "20/20 vision of hindsight" to assess the reasonableness of the officer's conduct and requires consideration of the "split-second judgments" officers must make in "circumstances that are tense, uncertain, and rapidly evolving." This means that the Court does not consider, for example, a person's race, background, and experience with the police in determining what constitutes a seizure or flight.5 But aren't threatening situations with police "tense, uncertain, and rapidly evolving" for civilians too? Doesn't the little old lady walking through a dark park at night have to make "split-second judgments?" Is she more prepared to deal with the situation she faces than experienced officers trained to deal with confrontations? The Supreme Court's language, in practice, reveals a standard that is deferential to an officer's subjective perception of danger, irrespective of the perception's rationale. The standard is not objective. At best, it is one of rationalized fear or rationalized dread. This double standard is counterintuitive. Many would expect police officers, who possess greater power and authority, to be less apprehensive, more responsible, and more careful than ordinary citizens facing "stressful" situations and, thus, more accountable for their mishaps. The logical expectation is that the reasonable police officer would be more "reasonable" than the average citizen. Yet, the Supreme Court's opinions on the issue imply a lower expectation of rationality from police officers than ordinary citizens. In a typical unarmed police shooting case, the officer shoots an unarmed civilian (or an armed civilian with a concealed weapon he lawfully carries), who did not provoke the encounter, made no false movements, or posed no immediate threat.6 The officer's fear may be genuine but unattached to the objective facts of the situation. Such fear would be unjustifiable, but for the Supreme Court's characterization of "circumstances that are tense, uncertain, and rapidly evolving" as viewed, apparently, from the subjective perspective of the officer.7 Most decisionmakers would consider the officer's use of deadly force reasonable under these circumstances, even though the reasonable citizen in an analogous situation (for example, a citizen observing an individual talking to a neighbor with a knife by her side but exhibiting no outward signs of hostility, or a resident observing a twelve-year-old playing with a toy gun in the park) would not have perceived a deadly threat. Moreover, if a citizen irrationally perceived a threat, that citizen would be guilty of criminal homicide or not guilty because of insanity.8 That is, a reasonable person cannot be irrational.9 They are unreasonable because they are irrational--unless they're a cop. Why the difference? The answer is not simple, but has two broad explanations: the unreasonable reasonable person is (1) a law enforcement professional and (2) usually white. Law enforcement professionals get the benefit of the doubt from prosecutors, judges, jurors, and white Americans at large. This benefit overlies any favorable presumptions granted by law. Whiteness adds other favorable presumptions like credibility and unearned empathy when the victim is Black. On the other hand, Blackness invokes a flurry of negative beliefs that undermine all favorable presumptions--legal and extrajudicial--and piles on other negative associations to boot. These include the presumptions of violence, criminality, immunity to pain, superhuman strength, and relative social worthlessness, all of which form the foundation of irrational white fear and are more thoroughly addressed in Part I. The first of these presumptions, a violent nature and relative worthlessness, are rooted in slavery. The original dread (the fear of Black reprisal) and rationalization (slavery is ethical because Blacks are subhuman) spurred such presumptions and gained layers as the African American community accumulated more freedoms, economic gains, and political power. The layers correspond to the evolution of white fear and the country's need to rationalize social, economic, and political inequity. The presumptions inform the deadliest legal standard in the modern era, the Supreme Court's rationalized dread standard. The rationalized fear or new dread standard is a subtle outgrowth of the Supreme Court's infamous decision in Dred Scott v. Sandford,10 where Chief Justice Taney held that a Black man had no rights a white man was bound to respect. But it is not just the undervaluing of Black people that connects the various iterations of the Supreme Court. The law-and-order Supreme Court justices who created the rationalized dread standard also adopted Taney's judicial interpretative methodology, namely "originalism." The law-and-order Court, however, has necessarily updated Taney's perspective. The subtext underneath the Supreme Court's new dread standard now reads: a Black man has no rights a white officer is bound to respect if the officer is afraid for his life. Any fear will do. Reasonable or not. Part I of this Article series examines fear from a biological, political, and sociological perspective. It highlights how most Americans impute reasonability to statistically unjustifiable perceptions of danger. Part I also examines the concept of reasonableness and analyzes the native and inevitable partiality of the standard. Finally, Part I explores the relationship between the social value of unarmed victims of deadly force and the perceived reasonableness of an officer's use of such force. It posits an inverse relationship between the perceived social status of the victim and the degree of statistical unreasonableness the law is willing to tolerate. The lower the victim's rank on America's racial hierarchy--the hierarchy created by nineteenth century pseudo-scientist Samuel Morton to justify slavery--the more likely decisionmakers are to find a statistically unjustifiable fear to be reasonable. African Americans are ranked the lowest. The same presumption of Black inferiority that Taney so boldly proclaimed in Dred Scott lies covertly beneath the contemporary Court's decisions involving unarmed police killings. Part II of this Article series discusses the sea change in excessive force standards from the common law's reasonableness standard to the current "rationalized fear" or "new dread" standard. Part II chronicles the change from different social, institutional, and legal perspectives, which have been factors influencing t he sea change. These factors include: (1) the erosion of the common law right to resist an unlawful arrest; (2) the evolution of the modern police force; (3) the development of the law-and-order Supreme Court after the social tumult in the 1960s and the simultaneous development of radical social conservatism; (4) the Court's holding in Graham v. Connor which was the first to express the shift legally; (5) the culture of police accountability encouraged by the law-and-order Supreme Court; and (6) the judicial creation and expansion of the qualified immunity doctrine. Part II exposes how the new dread standard operates by providing evidence that distills the current, amorphous excessive force rule into an articulable legal standard reflecting its true effect and intent. [ABSTRACT FROM AUTHOR] |
