Police wearing riot gear walk toward a man with his hands raised Monday, Aug. 11, 2014, in Ferguson, Mo. (AP/Jeff Roberson)

Shoot first, ask later: Why the concept of "reasonable fear" is anything but reasonable

Courts say cops can shoot out of "reasonable fear." In America that entails a myth of race and gender neutrality


Falguni A. Sheth
September 6, 2014 2:30PM (UTC)

Recently, Tamara Nopper and Mariame Kaba authored a haunting article, “Itemizing Atrocity,” analyzing reactions and analyses of the police shooting of Michael Brown and the seemingly sudden militarization of the police. They point to Ferguson as an example of the excess of the spectacle that draws attention to the most extreme cases of brutality or violence, and simultaneously renders the daily, hourly, violence faced by black Americans as ordinary and therefore unworthy of the empathy engendered in extreme cases.

Attention is drawn to the “spectacular event” rather than to the point of origin or the mundane. Circulated are the spectacles — dead black bodies lying in the streets or a black teenager ambushed by several police officers in military gear, automatic weapons drawn.

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Their insights resonated as every major media outlet covered the repeated, more extreme, ever-growing confrontations between protestors and Ferguson law enforcement. The sympathy for the brutalized in Ferguson emerged as a response to the documented ill treatment of relatively privileged and protected whites (reporters, supporters, observers) who momentarily faced the same treatment that is de rigeur for vulnerable blacks — in Ferguson, St. Louis, Chicago, Paterson, Charlotte, Houston, New Orleans, Los Angeles and elsewhere.

The other aspect of the extreme spectacle is that it allows Michael Brown’s death to be seen as contingent, accidental and not part of a pattern. Such extremes of violence garner attention to the murderous injustices faced by blacks, but emphasize that such injustices are somehow race-neutral, as in the sudden attention drawn to the militarization of the police — as a problem affecting not only blacks, but “everyone.” As Nopper and Kaba state:

We can also consider this an example of “the precariousness of empathy,” with blacks required to tether their suffering to non-blacks (and processes often erroneously treated as non-black, such as “militarization” and “globalization”) in the hope of being seen and heard. This is also a marker of the compulsory solidarity that is demanded of black people without any expectation that this solidarity will be reciprocated.

In that light, it is striking that the New York Times, which has explained the racial history of Ferguson, chooses a race-neutral standard by which to explain police shootings. In an article entitled “Key Factor in Police Shootings: ‘Reasonable Fear," Michael Wines and Frances Robles describe the conditions under which police officers are trained to shoot. They explore the standard of “reasonable fear,” as developed in Graham v. Connor, a 1989 decision in which the Supreme Court rejected a young man’s claim of excessive and brutal treatment by police. As Wines and Robles explain,

“a police officer’s use of excessive force must be seen in the context of what reasonable officers would do in the same situation, given the danger and stress of police work.”

The original case is germane to the shootings of Mike Brown in Ferguson and the cold-blooded shooting of Kajieme Powell in St. Louis several days later. In the 1989 case, a diabetic young man, Dethorne Graham, living in Charlotte, North Carolina, asked a friend, William Berry, to drive him to a store to buy some orange juice to counteract an insulin reaction that he was having. A police officer (Connor) noticed the haste with which Graham entered and left the store. After following him for a short distance, Connor stopped Berry and Graham. Graham eventually passed out for a few moments (presumably from insulin shock). Despite his friend’s explanatory pleas that Graham was having a diabetic reaction, Connor refused to release him and called for backup. Accusing Graham of being drunk instead, the officers restrained him on the sidewalk until they received a report from the store that nothing was amiss.

The Rehnquist Court circumscribed “reasonableness” as an objective standard by insisting that intent and motivation (presumably of the police officers) are irrelevant to judging whether excessive force was used:

[T]he question 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 court views the issue of “reasonable fear” from the perspective of the police officer. The standard is to be established based on the “threat analysis” — to the police officer — who is presumably trained, armed, and focused to attack, defend, and even kill.

Every step, however, is overshadowed by a single imperative: If an officer believes he or someone else is in imminent danger of grievous injury or death, he is allowed to shoot first and ask questions later. The same is true, the courts have ruled, in cases where a suspect believed to have killed or gravely injured someone is fleeing and can only be halted with deadly force.

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What we know, then, is that police officers are allowed to shoot first and ask questions later, presumably in order to act in the interest of themselves and the public interest. This, apparently, is what is meant by the “objective standard of reasonableness,” by what constitutes “reasonable fear.”

Notice several things about the summary of the Graham case and judgment:

1. Neither the racial backgrounds of the police officers nor of Graham and his friend are ever mentioned. However, given the profanities that the police officer used to describe Graham, the refusal to listen to his friend’s interventions and the town in which this event occurred, where 31.8% of the population was black and 65% was white, I would wager that Graham and Berry were black and at least one, most likely both, of the police officers were white.

2. The “reasonable fear” standard is based exclusively on the perceptions, danger, stress level and cognitive focus of the police officer. There are a number of assumptions predicated in this opinion: that police work is exclusively about danger, criminality and maintaining control (qua “peace and safety”).

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3. Correlatively, there is no discussion of the level of familiarity or intimacy with the community where the officer is employed or patrols — presumably because that is not the operative framework of either the police department or the Supreme Court.

4. The case is decided based on the 4th Amendment rights to search and seizure — in 1989. Two and a half decades later, in a world where the assumption of such a right has been starkly diminished through the operative framework of National Security, where the state has established increasing authority to encroach upon one’s person, property and effects, how would such a lawsuit be entertained by the courts today?

All of this raises the obvious question: Is the notion of a “reasonable fear” standard, well, reasonable?

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The standard of the “reasonable person” has a longstanding history, and can be found in various places, such as the 17th century writings on liberalism by philosopher John Locke. For Locke, reason was supposedly a capacity issued to everyone “who will but consult it.” One’s proof of possession of reason was the ability to accumulate property (and visibly demonstrate that ability in a form understood by 17th century Englishmen — colonialists, parliaments and royalty). Needless to say, this ability was not possessed by American Indians, or those who were poor, dumb or slaves. (White) women could demonstrate a limited form of reason, but in cases of controversy, the ultimate arbiter of reason would be her closest living male relative.

It should be no surprise then, that with this sort of notable history, the “reasonable person standard” retains the fable of being “race/gender/class-neutral,” while the empirical reality betrays a different story: reasonable persons are those with whom those in power (those with wealth) identify. Indeed, there is significant criticism within legal scholarship on the “reasonable person” standard, going back decades: David Harris, Kimberlé Crenshaw, Katherine Francke, Akhil Reed Amar, Randall Susskind, Mia Carpiniello, Devon Carbado and many other legal scholars have illustrated that the “reasonable person” standard is destructive and harmful to minorities — and especially to black Americans, who in their mere existence are viewed as harmful and destructive to a “peaceful” society.

As long as we confuse the fable with the aspiration, what is “reasonable” will always be decided from the perspective of those who are presumed to be the center of race/class/gender neutrality: those who make the laws, those who enforce the laws and those who arbitrate the laws -- Congress, the police/military, and the judiciary. To that end, I doubt that we will find wisdom or thoughtful assistance from the Supreme Court. As Erwin Chemerinsky, dean of UC Irvine Law school, argued several days ago, the Court has routinely shown complete unwillingness to hold police officers or municipal governments liable for civil rights violations, excessive force or police brutality. And racism, as the Court demonstrated most recently in April of this year, exists no longer in this “post-racial” world,” where admissions are supposed to be color-blind.

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Similarly, in the vein of objective reporting, Wines and Robles offered no discussion of racial discomfort or familiarity with regard to the question of policing. There was no discussion of the amount of paranoia about the (racial?) enemy that a police officer must cultivate or disregard in order to be good at his or her job. As is well-documented, this is the part of police training that overlaps with “military training”:  breaking down one’s humanity in order to prepare a soldier to kill.

This is the most striking aspect of the question of reasonable fear, but it is rarely questioned by the judiciary. Why should “reasonable fear” be defined by the perceptions of the police officer when there are valid reasons to include or consult the perceptions of the public at large, the perceived suspect, the community in general — particularly when it has been demonstrated to be under (quiet?) siege? What constitutes a “reasonable fear” for a white officer in a community that has had a history of racial antagonisms, or has undergone shifts in racial composition corresponding with equally dramatic economic shifts? I suspect that a “reasonable fear” would be different for officers who are of the community where they are policing than for a “racial outsider.”

This brings me to my larger concern: It’s time for the judiciary, the legislature and the police to stop pretending that there is a universal standard of “reasonability,” especially when it concerns reaction times and injury. They — we —must link the idea of a “reasonable fear” directly to one’s racial and class discomforts. This is especially the case when we are asking for accountability from law enforcement in communities where the racial/ethnic/class backgrounds of the population under scrutiny are different from that of the police force.

Without detracting from the horror of the explicit, blatant violence (and explicit claims to the legitimacy of that violence), I want to call attention to its less spectacular, less explicit, institutional and psychic conditions. These are the ones that are banal, quotidian, ordinary in that they are embedded in the laws, the regulations that make it possible to inflict violence with impunity. A recent example of this was seen in the Ferguson police’s ability to insist contradictorily that, while they wouldn’t inhibit 1st Amendment rights to speech, protestors had to keep moving. As well, what appeared to outside observers as the sheer incompetence of the police force, the guilelessness with which they did not hesitate from pointing guns at media or observers (who were filming them) while threatening to shoot them, was in fact an expression of their certainty of their own impunity, their undoubtedly well-founded belief that they are effectively beyond reproach in how they handle perceived threats such as open and mass dissent.

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As importantly, background conditions matter and are relevant to the standard of “reasonable fear.” As a recent New York Times editorial pointed out in the case of Ferguson, the relationship between the police and the majority black community is framed by the history of white flight, restrictive racial covenants, white majority police force, white majority town council, white majority school board and absence of black wealth. Hence we can infer that serious structural obstacles, not failures of character — have resulted in an absence of black political enfranchisement.

As black families moved into Ferguson, the whites fled. In 1980, the town was 85 percent white and 14 percent black; by 2010, it was 29 percent white and 69 percent black. But blacks did not gain political power as their numbers grew. The mayor and the police chief are white, as are five of the six city council members. The school board consists of six white members and one Hispanic. As Mr. Gordon explains, many black residents, lacking the wealth to buy property, move from apartment to apartment and have not put down political roots.

So, is it any wonder that “reasonable standards” are decided by those considered “reasonable,” namely those who make the laws and the rules, do the hiring and training of law enforcement, decide and enforce education policies — and then impose upon the politically and economically disenfranchised? And of course these are the minority and relatively disenfranchised populations of Ferguson, Paterson, Charlotte, Chicago, St. Louis, Los Angeles and elsewhere. These are populations about whom those making the rules know little, and about whom they care even less.

Must “objective fears” always be framed by the fears of the white majority — the “reasonable” persons — against those deemed, in law and politics, as “unreasonable” sub-persons? Is it possible for the Supreme Court to stop granting ever-greater license to police officers, and instead lend their support to the citizenry of those communities who are being ever-more policed, disciplined and brutalized?

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Falguni A. Sheth

Falguni A. Sheth is a professor of Women’s, Gender and Sexuality Studies at Emory University. She writes about politics, race, and feminism at translationexercises.wordpress.com. Follow her on Twitter at @FalguniSheth.

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