On Wednesday, the nation awoke to the killing of Alton Sterling. On Thursday, the killing of Philando Castile. On Friday, the apparently retaliatory killing in Dallas of five police officers patrolling an otherwise peaceful protest decrying these, and other, police shootings. With each tragedy comes not only a growing outcry for accountability, but also a growing skepticism that the justice system can guarantee it.
Sadly, from New York to Ferguson to Cleveland to Baltimore, prosecutors across the country are frustrated by the realization that that skepticism may indeed be justified.
The actions of the common man are judged under a so-called “reasonable person” standard. When he is confronted with violence, we ask whether an ordinary person would have perceived the alleged threat, and if so, what would he have done to neutralize it? He is judged by whether he would follow the herd of common sense.
Police officers enjoy a very different standard — one that doesn’t require them to be judged by what the average Joe would do. No, an officer is only judged by whether he or she acted as another reasonable officer in his own position would — even if such action is directly at odds with common sense.
Why is that? A powerful little thing the Supreme Court called deference.
Supreme Court precedent requires that we defer to the judgment of police officers in determining the amount of force necessary to apply in the performance of their duties. We are told this deference is warranted because we must trust the instinct of those who routinely make split-second decisions in the face of grave danger.
Make no mistake, trained, law-abiding officers are indeed deserving of that deference and respect. But there are some officers who exploit the benefits of deference, and chalk up even the most obvious instances of excessive force to respectable instinct.
Of course, deference was not meant to be a carte blanche to exact violence without retribution. And, the notion of deference was not meant to immunize police officers from justifiable prosecution. But, much to our collective chagrin, it has indeed had that effect.
Some decline to prosecute rogue police officers who have applied excessive force because they believe that deference is an insurmountable defense. Those with the gumption to prosecute quickly discover their task is Sisyphean when confronted by a standard that instructs a jury to judge an officer’s actions not by what a reasonable civilian would do, but by what another officer would do. After all, the wolf is not to be judged by the lamb.
Therein lies the problem. Without a legal hook, there can be no meaningful check on an abuse of police power. Protesters are angered by the realization of this futility, and their resulting impotence. Powerlessness is as cancerous as power is addictive. It fuels a desire to reclaim a sense of power, and take the law into your own hands. But we cannot become a nation that adheres to Hammurabi’s code. And we cannot remain a nation that vilifies an entire group — be it police officers or racial minorities — by the actions of a select few.
I’m all for Kumbaya moments, complete with s’mores and discussions of community-police partnerships. But as a prosecutor, I’m far more interested in righting wrongs, regardless of whether that wrong was committed by an officer preying upon a civilian or a civilian preying upon an officer.
To do that, though, the use of force standard must be judged — and applied — equally. Congress can and should change the legal standard for evaluating excessive force from that of a reasonable officer standard to a more objective standard. This will replace the blindfold on Lady Justice, and condemn the transformation of split-second decisions into knee-jerk reactions perhaps fueled by bias.
To date, the legal precedent has effectively shielded culpable officers from justifiable prosecution, had a deleterious impact on communities impacted by racial profiling and has had the collateral effect of conferring blind faith rather than guaranteeing blind justice.
The people are screaming. Justice can’t also be deaf.
