Monday, September 1, 2014

It Wasn't Reasonable to Beat Dethorne Graham

If Ferguson police officer Darren Wilson is ever charged for killing Michael Brown, it's questionable whether Wilson will be found guilty of anything. It's hard for me to understand why, but it has a lot to do with a 1989 Supreme Court decision called Graham v. Connors.

This was in the days of the Rehnquist Court when SCOTUS was still somewhat moderate. Antonin Scalia and Anthony Kennedy are the only two justices still serving from that time, and they were pretty new on the court then. Other members included Sandra Day O'Connor and William Rehnquist, appointed by Ronald Reagan, but there were also Thurgood Marshall, William Brennan, Byron White, Harry Blackmun, and John Paul Stevens -- several of those names are thought of as the most civil rights- and civil liberties-oriented members to ever serve.

Yet they came to a unanimous decision in Graham. I admit I don't really understand the finding and the legal questions they seem to be answering. I wish someone with a law background would explain it to me.

It seems to be about whether the 4th Amendment should be applied in the circumstances of an arrest, rather than the 14th. And that the decision is actually more in favor of citizens, because the 4th Amendment standard is based on a reasonableness of the cop's actions, while the 14th would require a more stringent standard where you'd have to prove the cops use of force was malicious.

Unspoken in the legal write-ups is the fact that the case took place in Charlotte, N.C., and that Dethorne Graham is black. No one mentions whether the cops were white or not.

But check out this description of the case and think about how low the meaning of "reasonable" can get (quoting the Wikipedia):
Petitioner Graham, a diabetic, asked his friend, Berry, to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend's house instead.

Respondent Connor, a city police officer, became suspicious after seeing Graham hastily enter and leave the store, followed Berry's car, and made an investigative stop, ordering the pair to wait while he found out what had happened in the store. Respondent backup police officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain and treat Graham's condition.
During the encounter, Graham sustained multiple injuries. He was released when Connor learned that nothing had happened in the store. Graham filed suit in the District Court under 42 U.S.C. § 1983 against respondents, alleging that they had used excessive force in making the stop, in violation of "rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983."

The District Court granted respondents' motion for a directed verdict at the close of Graham's evidence, applying a four-factor test for determining when excessive use of force [was used and] whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm....

Held: All claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard.

(a) The notion that all excessive force claims ... are governed by a single generic standard is rejected. Instead, courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then judge the claim by reference to the specific constitutional standard which governs that right.

(b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard.

(c) The Fourth Amendment "reasonableness" inquiry 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 "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
That's what I mean about not understanding all of this, yet getting the fact that the court was sticking to the most citizen-friendly standard available (reasonableness). SCOTUS turned Graham's case back to the appellate court, where he lost again, based on the reasonableness standard.

Here's how all of that gets operationalized by the police, as described on the site East West K9 (for police who work with police dogs):
The Supreme Court ruled in Graham that excessive force must be analyzed under the Fourth Amendment's objective reasonableness test. The application of this test requires an analysis of the totality of the circumstances, including these factors to determine if the seizure is reasonable:
  1. The severity of the crime at issue;
  2. Whether the suspect poses an immediate threat to the safety of law enforcement officers or others;
  3. And whether the suspect is actively resisting arrest or attempting to evade arrest by flight
The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on scene, rather than with the 20/20 vision of hindsight.
So in the case of Mike Brown, the severity of the crime was jaywalking. But Wilson will say that Brown "went for his gun."

Brown was running away from Wilson but had turned back toward him. The distance between them is something that has not yet been established, but it's clear that Brown was unarmed.

The third point, it seems to me, makes it clear that shooting someone who is unarmed and not in proximity of your gun is unreasonable. If an unarmed person is "attempting to evade arrest by flight," that may be reasonable cause for hitting him with a taser or club, or tackling him to the ground, but shooting with deadly force cannot be reasonable by any standard, in my opinion.

But it also wasn't reasonable to find Dethorne Graham was treated within the bounds of proper procedure, in my opinion. Here's a guy who's having a serious medical problem that's disregarded by the cops, and who instead place him in handcuffs.

According to an excerpt on Lexis Nexis:
While [Officer] Connor radioed for backup, Graham, his condition worsening, got out of the car and ran around it twice. Graham then stopped, sat down on the curb, and passed out. He awoke to find himself handcuffed and lying face down on the ground.

In the meantime, four other Charlotte police officers arrived at the scene. One officer remarked, "I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the motherfucker but drunk. Lock the son-of-a-bitch up."
 When Graham woke up, according to the Washington Post,
Backup officers [had] arrived, told Graham to shut up and rammed his head into a patrol car while throwing him in the back of it.

Graham sustained minor injuries and argued that the officer’s use of force was excessive.
More detail is provided in this write up from the sociology department at the University of Minnesota:
[After Graham passed out] several officers then lifted Graham up from behind, carried him over to Berry’s car, and placed him face down on its hood. Regaining consciousness, Graham asked the officers to check in his wallet for a diabetic decal that he carried. In response, one of the officers told him to “shut up” and shoved his face down against the hood of the car. Four officers grabbed Graham and threw him headfirst into the police car. A friend of Graham’s brought some orange juice to the car, but the officers refused to let him have it. Finally, Officer Connor received a report that Graham had done nothing wrong at the convenience store, and the officers drove him home and released him.
I wonder what would have happened if a 60-year-old white woman had been the one who behaved as Graham did -- going into and out of a convenience store quickly. She wouldn't have been stopped in the first place, of course, but let's say she was. When she passed out on the curb, they would have called an ambulance, right? Not beaten her head against the car door. Not assumed she was drunk when there was no smell of alcohol.

Race (and gender and size of the suspect) all play into what the police and courts call "the totality of the circumstances." Which gives the police license to do just about anything they feel like in the heat of the moment.

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Note: It was tough finding proof that Dethorne Graham, who died in the year 2000, was black. I finally turned up this article from the St. Louis Post-Dispatch (of all media outlets, ironically), reprinted in the Elyria Chronicle Telegram (Ohio). In addition to affirming that Graham was, indeed, black, the editorial says:
Graham, who is black, says police handcuffed and beat him, then dumped him in his yard. He was never charged with any crime but he did suffer a broken foot, cuts and bruises on his wrists and face, and a shoulder injury and possible hearing damage.

In his suit, Graham claimed the police used excessive force and violated his Fourth Amendment rights. But a judge ruled he could recover damages only if police had acted "maliciously and sadistically."….

Most other appeals courts already would require Graham to prove only that unreasonable force was used, not that police were malicious or sadistic. The lesser standard is objective and easier to prove than probing someone's motives to find malice and sadism. Clearly, the injuries inflicted on Graham when he had committed no crime were excessive. He should have to prove no more than that.
"Clearly, the injuries inflicted on Graham when he had committed no crime were excessive."

That's the standard we need to remember. And yet Dethorne Graham never got justice from our court system. I hope Mike Brown and his family are treated better.