"Why did you draw your gun?” How the law encourages police brutality

It's not a few bad apples we need to worry about. It's a system that condones police violence against black people

By Joshua Michtom

Published October 31, 2014 5:13PM (EDT)

  (Reuters/Mark Leffingwell)
(Reuters/Mark Leffingwell)

A few years ago in juvenile court, a police officer was testifying about approaching my client, a teenager who more or less fit the description of someone who had recently stolen a pack of gum from a convenience store. At about 11:00 a.m. on a Sunday in the summer, my client, along with two other young men, was sitting on the front steps of an apartment building. When the police car pulled up to the curb in front of them, none of the three men reacted. They just sat there talking. When the door to the cruiser opened, no one ran. No one reached for a gun. According to the officer’s testimony, the three didn’t even seem to look up. Then, the cop testified, he drew his gun and pointed it at the three men as he walked toward them.

“Had any of the men made any suspicious movements?” I asked.

“No,” said the cop.

“Did you have any reason to think the men were armed?”

“No.”

“So why did you draw your gun?”

Trial lawyers are taught never to ask a question to which they don’t already know the answer, and I was breaking that rule when I asked the last question. But I figured no possible answer could hurt my client. Still, the cop’s answer stunned me:

“I was outnumbered.”

I looked around the courtroom, making a show of quietly counting on my fingers the other people there – the court reporter, opposing counsel, the clerk, the judge. Then I asked the officer, “Are you outnumbered right now?”

It is hard to imagine moving through the world and seeing every other human being around you, no matter how ordinary, as a threat. If I lived like that, I wouldn’t leave the house. But police are trained to see the world that way, and for at least fifty years, our courts have ratified their worldview.

In court decisions and training manuals, the term “officer safety” comes up again and again, a shorthand for the inoffensive notion that cops have an inviolable prerogative to use force to protect themselves. But “officer safety” exists as a concept because we believe in a complementary but more sinister concept: civilian dangerousness. In a highly segregated society with a 400-year history of white fear of black violence, where criminality and blackness are deeply intertwined in the imagination of the majority, civilian dangerousness means black dangerousness. Culture teaches the members of our disproportionately white police forces to view young men of color with fear and suspicion. Police training reinforces the idea that every interaction with a civilian is a tactical operation fraught with peril. This is a recipe for interactions that turn into violent confrontations. This is our policy, and we are seeing its logical results around the country.

White fear of black men has a very long and deplorable history in this country, and innumerable innocents have seen the business end of a noose because of it. But the police procedures and legal presumptions that enshrine white fear today began to calcify in the 1960s. Toward the end of that decade, black Americans found themselves in possession of a series of long overdue legal victories that seemed to be good only on paper. The Voting Rights Act and the Civil Rights Act were the law of the land, but the South and much of the North still operated by the law of a sheriff’s gun. School integration, too, was a battle won and yet lost. And of course, the unfair economic advantages of centuries of oppression were only being refined and entrenched, as Ta-Nehisi Coates has eloquently explained. So when urban black America was finally convulsed by the sort of violence that we would expect from anyone in the face of such vicious and unceasing abuse, many white Americans, the bulk of them probably apolitical, some of them supporters of the civil rights movement, were suddenly and decidedly afraid.

Not surprisingly, then, white flight hit its stride in the 1960s, timed perfectly to fuel the burgeoning suburbanization that the interstate system had made possible. Then, in the 1970s, the manufacturing economy that had drawn blacks from the South began to fizzle. The cities, which had lately become appreciably blacker, now became appreciably poorer as well. A divide was growing in this country, between the suburban, predominantly white middle class and the urban, predominantly black working class. Into this climate came police militarization: as Tamara Knopper and Mariame Kaba observe in Jacobin, “[T]he militarization of US police can be traced back to the mid-1960s. . . The social anxiety and fear engendered by the Vietnam War and domestic urban rebellions led by black people provided license for the police to turn these new products on the marginalized populations of inner-city America.”

As downtowns deteriorated, suburban whites had fewer and fewer reasons to visit cities at all, and less and less contact with people of color. It became easier for them to imagine black Americans as a faceless horde, unified in their hostility toward authority in general and white people in particular, and cloistered in fetid cities that were to be avoided at all costs. It wasn’t an accident that when Boston’s seedy downtown entertainment district was dubbed the “Combat Zone” by journalists in the 1960s, the name stuck – the concept of city-as-war zone resonated in the suburbs. At the same time, Readers Digest and Look began a sporadic series of salacious stories on urban welfare fraud. In 1980, Ronald Reagan, who probably did the scary-urban-black-people trope better than anyone in politics, made the largely fictional phenomenon of “welfare queens” the signal element in distinguishing himself from Jimmy Carter. That same year, Billy Joel could catalog his own craziness in a song with just three examples: “been stranded in the Combat Zone,” “walked through Bedford Stuy alone,” and “rode my motorcycle in the rain” – never mind that the people who lived in Bed Stuy had to walk through the neighborhood alone all the time. Joel was a suburban white person singing to other suburban white people, and they knew what he meant.

The development and institutionalization of this social anxiety can be neatly tracked just by looking at decisions of the U.S. Supreme Court, where “officer safety” has developed into a talisman to be invoked against any restraint on the exercise of police power. By expanding, again and again, what may be done in the name of officer safety, the Court has made manifest its perception that there is a corresponding growth in the danger posed to police by civilians, and the measures that police must take to protect themselves. In practically every case that has defined this body of law, the civilian involved was black.

The high court considered police officer safety as a justification for a cop’s action for the first time in 1968, in the landmark case of Terry v. Ohio. That case involved a veteran beatcop who noticed two men standing on a street corner in downtown Cleveland in 1963. Here is how the Supreme Court explained the beginning of the encounter:

At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case when I looked over they didn’t look right to me at the time.”

Detective McFadden followed Terry and Chilton, who seemed to be taking turns walking down the street, looking into a shop window, and then returning to the corner. The officer thought they might be preparing a robbery. Ultimately, the officer approached Chilton, Terry, and another man, Katz, who had all gathered in front of the store. The officer asked them their names, they answered, and then, without saying anything else, he patted each one down and discovered that Terry and Chilton had a gun each.

From this set of facts, the Supreme Court drew the following conclusion: “We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.” And thus was born the Terry stop – the idea that police can conduct a warrantless search if they have a reasonable suspicion that there is a threat to their safety.

Since then, the breadth of what officer safety will justify has expanded. In 1973, in United States v. Robinson, the Court upheld an officer’s full search of a man who was being arrested for driving with a revoked license. This wasn’t just a search for weapons — the officer did that and found none. Instead, after finding no weapons, the cop took a cigarette pack from the man’s pocket, opened it, and found heroin inside. Still, the justification for that search was officer safety, which the court felt was only properly protected by full searches for any arrestable offense. The court declined to accept the notion “that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes.” Think about that: the Supreme Court said that anyone stopped for any arrestable crime (jaywalking, say, or selling untaxed cigarettes) is as likely to present an immediate danger to police as a person arrested for murder or armed robbery. It’s a bold step away from the circumstances of Terry, where the officer had some concrete reasons to think an armed robbery might be in the offing. In Robinson, the Supreme Court said, in essence, “every suspect is dangerous.” And of course, it is the police who determine who the suspects are.

By 1977, officer safety had become a reflexive invocation entirely divorced from specific facts. In Pennsylvania v. Mimms, the Court extended Robinson beyond arrestable offenses to any interaction between a cop and a person in a car, saying that a routine traffic stop was enough justification for an officer to order a driver out of the car and pat him down, even without actual indications of danger. “The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation.” But, said the high Court, “we think it too plain for argument that the State’s proffered justification – the safety of the officer – is both legitimate and weighty.”

In the nine years between Terry and Mimms, the danger faced by police on the job had grown, in the perception of the Supreme Court, from something to be conceded only in particular circumstances (men who appeared to be preparing for an armed robbery) to something to be presumed whenever cops interacted with civilians. And who were those civilians? When the Supreme Court quoted Detective McFadden’s testimony that Chilton and Terry “didn’t look right” to him, it left out another detail revealed in the same hearing: they were black. So, too, were Willie Robinson and Harry Mimms.

In 1989, the Supreme Court synthesized some of its accumulated ideas about officer safety in Graham v. Connor, a case involving a man who sued the police for using excessive force in detaining him. Most importantly, the Court ruled that police use of force should be judged not from the perspective of a judge or an ordinary citizen, but from the viewpoint of a reasonable police officer. And “[t]he calculus of reasonableness must embody the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”

That view of the peril of police stops persists, and it informs police procedure. According to the National Highway Transportation Safety Administration, on a web page titled “Traffic Stops are Dangerous”:

Many officers are killed each year and thousands more are injured in traffic related incidences. For example, in 1999, over half of all officer, line-of-duty deaths were related to traffic incidences. In addition, when the use of weapons at the traffic stop are added, the percentage of traffic related deaths is over 55 percent. Every stop for a traffic violation has the potential for danger.

Routine traffic stops, as they are sometimes called, sometimes turn out to be anything but routine. Officers find uninsured drivers, drivers with suspended licenses, impaired drivers, illegal firearms, drugs and fugitives. Discoveries like these are all in a day’s work for many officers. This is why officers are trained to place a great deal of emphasis on their safety and take a defensive posture at the stop until the risk of confrontation or injury is diminished.

The takeaway is that police work is highly dangerous and routinely presents highly volatile, unpredictable scenarios. As the NTHSA website suggests, this is the fundamental assumption that girds police training materials. A survey of widely used police training literature by law professor Seth Stoughton, himself a former police officer, reveals that:

[f]rom the time they are in the police academy, officers are taught that their single overriding goal every day is going home at the end of the shift. One of the most popular police training texts instructs officers to make tactical thinking a constant part of their working lives by considering, as they approach each encounter, their response to possible resistance. Police operating procedures enshrine the concept of tactical awareness. Suspicion is not reserved for suspects; a safety-conscious officer approaches witnesses and victims with similar care. An officer will take steps to control a scene well before they initiate contact with someone. For example, an officer who is going to conduct a traffic stop may delay by following the target vehicle until they reach an area that will provide some tactical advantage. Officers are trained to approach pedestrian stops in a similar manner; they select the location and environment, so far as possible, before commanding a civilian to stop.

Here’s the problem: while police work often entails great courage, the assumption that police work is especially dangerous is not necessarily supported by the numbers. On-the-job police fatalities are statistically rare; the profession does not rank among the nation’s most dangerous in this regard. Despite the notion — often voiced by defenders of police accused of using excessive force — that cops must be eternally vigilant against assailants who will grab their weapons, that basically never happens.

Of the roughly 780,000 law enforcement officers in the United States, 105 died in the line of duty in 2013, and 30 of those were from hostile gunfire of any kind (including, presumably, incidents involving their own service weapons). A thorough analysis by Professor Stoughton revealed that police interactions with civilians are almost never “tense, uncertain, and rapidly evolving,” as the Supreme Court described them in Graham v. Connor.

In the Tulane Law Review, Stoughton writes, “in 2008, officers used or threatened force in less than 2% of approximately forty million civilian interactions.” And even the Supreme Court’s theory that automobile stops are especially dangerous for cops crumbles under scrutiny: In Robinson and Mimms, the high court relied on a single study that indicated that 30% of incidents where cops were shot began with traffic stops (the NHTSA offers the even higher rate of “more than half”). As any student of basic statistics will tell you, that figure reveals almost nothing about how dangerous traffic stops are. (There could be three million traffic stops, only three of which resulted in officers’ being shot, and the statistic would still hold true as long as seven officers were shot in other types of encounters). A 2001 review of ten years of national traffic stop data in the Journal of Criminal Justice estimated the risk of a police fatality during a traffic stop at between 1 in 6.7 million and 1 in 20.1 million.

Why, in the face of these data, does police training continue to tell officers that they are targets? And why do courts continue blithely to ratify this view, holding cops blameless for conduct that would get most of us charged with a felony? The answer is in another set of data: Studies and polls routinely show that white Americans, and the American public in general, perceive black people to be more violent than other groups and more prone to drug abuse, although neither of those assertions is demonstrably true. Americans generally overestimate the percentage of violent crimes attributable to blacks.

We live in a nation where white and black people continue to live in separate neighborhoods, where most white people don’t have any black friends, and where police forces and judiciaries are significantly whiter than the communities they serve. In that context, it’s not really surprising that police training and practices are adversarial toward black people, that courts approve of the approach, or that the white majority largely fails to understand or be moved by the situation.

There’s a video, taken on September 4 of this year, of a white South Carolina Highway Patrol Officer stopping a black man for a seatbelt violation. The man, Levar Jones, has already parked at a gas station and is getting out of his car when the officer, Sean Groubert, pulls up and asks to see his license. Jones does pretty much what you might expect – he turns around and leans back into his car, as if to retrieve something. And then, in an instant, Groubert is screaming, “Get out of the car! Get out of the car!” as he runs toward Jones. It takes Groubert less than one second to say that, and then he shoots Jones multiple times from just a few feet away:

Jones (who was unarmed) survived, and Groubert was fired and charged criminally. But when you listen to Groubert’s voice in the second before he starts shooting, you can hear something clearly: fear. He really thought Jones was dangerous, and he was well trained in how to react to danger. The South Carolina Public Safety Director described the shooting this way: “I believe this case was an isolated incident in which Mr. Groubert reacted to a perceived threat where there was none.” But the incident is not isolated. We are a nation that has trained its police to treat people of color the way the white majority always has — the way that Sean Groubert treated Levar Jones: perceiving a threat where there was none. As long as that perception continues, young men of color will continue to be needlessly beaten, and sometimes killed, at the hands of the police.


Joshua Michtom

Josh Michtom is a public defender in Hartford, Conn. His views do not necessarily represent those of his employer.

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