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Civics Tue Nov 25 2014

The Impossible Case of the Courts and Police Reform

Civics by Ramsin CanonA vulnerable population and common violations of Constitutional rights. It is precisely the type of scenario where courts should be able to intervene to stop abuses. Yet because of legislative inaction and Supreme Court case law, courts are paradoxically unable to play a part in stemming ongoing injustice.

When can a police officer use deadly force to prevent a person from fleeing -- or to "seize" them, under the meaning of the Fourth Amendment? In Chicago, there are three levels of rules that determine this: first at the highest level, there are the Supreme Court decisions in Garner v. Tennessee and Graham v. Connor. These decisions together create the constitutional limit on the use of deadly force. Basically, they hold that for an officer to use deadly force but not to violate the Fourth Amendment's protection of individuals from unreasonable searches and seizures, they must have an objectively reasonable belief that they or the public are in imminent danger of bodily harm, or have probable cause to believe that the person committed a serious, violent felony (burglary would be insufficient) and they are fleeing. The effect of these decisions was that in most states, laws that defined a justifiable homicide committed by a police officer were unconstitutional to the degree that they permitted any use of force in excess of the constitutional limit.

In Illinois, at the second level of rule-making, this rule for deadly force is codified at 720 ILCS 5/7-5, in the criminal code. It states that a police officer is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another person, or when he reasonably believes both that,

(1) Such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(2) The person to be arrested has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay....

In turn, at the third level, the Chicago Police Department has a directive, issued in 2002 by Superintendent Terry Hilliard, and somewhat elaborated by Garry McCarthy in 2012, guiding the use of deadly force. It basically incorporates the constitutional and state limits (it cannot be more broad), and creates reporting requirements and duties to intervene in cases of excessive force.

Viewed in the abstract, a fair argument could be made that these policies are reasonable. The question then is, when is implementation of these policies not reasonable, or unjust? When should the citizens act to reform use-of-force policies?

None of this is to discount the argument that police should never use lethal force except in cases where any person would be justified in using it -- where it is objectively necessary in defense of their own lives or those of others. There is a strong moral argument to support this; after all, the Court in Garner based its decision in part on the fact that studies showed use of deadly force is not a good deterrent to escape attempts (see footnotes 9 and 10 in the Garner majority opinion). However, this is the leeway many state governments have generally decided to give police departments. These laws could change to be more stringent -- allow use of force in fewer scenarios -- but absent sufficient political will, they are unlikely to be changed.

It is important to remember that the Supreme Court and the state set the limit to deadly force rules; they can be stricter on police, but not broader, than the Constitutional limit. While a rule like Illinois' may be fine as generally applied across different communities, it can in individual cases be too broad. That is, particular police forces may be abusing their discretion in making dead-force decisions; some may be offering poor training in how to abide by the rules. Some may be working in communities with histories of discrimination. In places like these, political control of the department may be beyond the reach of minority populations.

Improper use of deadly force, besides a moral issue, is a legal one; it involves a perversion of a Constitutional right. So if political control is not feasible, the logical place to go to prevent these kinds of rights violations is the courts. And while courts can provide redress to in the form of damages awards to the families of killed victims, they can't force cities to reform their policies.

Typically, if the government is systematically violating rights, a court can intervene to stop them from implementing whatever policy violates those rights -- for example, barring the teaching of creationism in schools in violation of the First Amendment. This is just a permanent injunction. Where there is a systematic problem -- say a state maintaining their prisons in a way that violates prisoners' Eighth Amendment rights -- a court can enjoin the government to reform itself in a way that will no longer infringe those rights. This is called a "structural injunction," and while rare, they are not uncommon in the legal history of the Twentieth Century.

The problem is that the Supreme Court has made all injunctions, much less structural injunctions, more or less impossible when it comes to police procedure. This stems from a case called City of Los Angeles v. Lyons. Lyons was a black man pulled over one night by the police. After they approached him, they pulled him from his car, although he was offering no resistance, and applied a chokehold -- authorized as a subduing technique by the Los Angeles Police Department -- that caused him to black out and seriously damaged his larynx. Lyons sued, seeking damages for his injuries and an injunction preventing the Department from using chokeholds in the future.

The Supreme Court ultimately held that Lyons lacked judicial standing to be awarded such an injunction. They reasoned that despite overwhelming evidence that the LAPD officers improperly used chokeholds particularly against black men, Lyons himself couldn't show that he was likely to be put in a chokehold by the LAPD again. He couldn't show that he was faced with a "real and immediate threat" of being victimized again. The upshot of the Court's ruling is that no individual -- not even someone who has been victimized and is in a class of people disproportionately victimized -- can bring a case for an injunction to force a change in police practice. You can readily see the problem when it comes to use of deadly force; anybody who has been a victim of it by definition has no chance of being victimized again.

This results in a legal anomaly. The most serious invasion of Constitutional rights -- the extra-judicial taking of a life -- that the state can perpetrate is screened off from effective, broad legal remedy. Courts can instruct individual school districts to bus kids to particular schools because of the indifference of school boards, but they cannot order police departments to better train their officers (a structural injunction), or even to ban the use of deadly force except in cases of defense-of-life, even where police homicides are epidemic. This anomaly strongly suggests the need for a reformulation if the law is to be consistent.

In some places indeed, police homicides are rife, incommensurately concentrated in particular communities -- black men -- and go unpunished. This report in Truthout shows just how serious this problem is in Chicago in particular. Yet the families of victims, while able to seek compensation for the wrongful death and constitutional violations of their loved ones, are unable to pursue perhaps the most important remedy; a court order that requires departments stop the conduct that resulted in their loss.

You can sue to require a government agency stop building a dam that could kill off an endangered bird on the grounds that you regularly and imminently intend to enjoy a walk through their habitat. But you cannot sue to stop a heavily armed government agency from implementing a policy that results in a disproportionate number of killings of a particular group of people.

While the Supreme Court determines the constitutional requirements for standing, state legislatures are free to give citizens standing in state courts. Members of the public should be able to pursue injunctions against police departments that are unconstitutionally implementing their use-of-force guidelines.

Fears of court interference in the operation of police forces is overstated; in Chicago for example, a court order would take the form of enjoining implementation of parts of Police Directive/General Order G03-02. At the most, a structural injunction could issue requiring particular training until compliance with constitutional norms were achieved. If the concern is that abolishing the state law justifying use of deadly force would hampers its use where police departments aren't abusing it, such a reform would leave the state rule in place in places where it is being constitutionally applied and effective as a deterrent.

If states are going to authorize the use of deadly force by police in other than defense-of-life scenarios, then the public, particularly susceptible populations with limited political power, should have access to meaningful court review of those policies. And if police departments are implementing the policies unconstitutionally, courts should be able to intervene. The law can't abide an anomaly where the stakes are life and death.

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Maureen Coffey / December 3, 2014 3:34 AM

"... police homicides are epidemic ..." This in the land of the free ... We might add that the putting to death of innocent defendants by death sentences based on insufficient or wrong evidence. Or the incarceration of people thretened by a death sentence after entering a plea bargain just to save their life. The list goes on. The US should not publish human rights reports on other countries but take a deep inward look at itself ...

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