Does Fear of Black Men Satisfy the “Objective Reasonableness” Standard?

crutcher-helo-2Another video. Another police shooting. Another Black person’s body dead on an American road.

Every person is innocent until proven guilty.

That is true for Betty Shelby, the police officer who shot and killed Terence Crutcher in Tulsa, Oklahoma on September 16, 2016.

“What did Terence Crutcher do to justify a death sentence?”

It also should have been true for Terence Crutcher.

So what did Crutcher do to justify a death sentence?

Legally, we have to ask two questions. What did Crutcher do to cause Shelby to fire her weapon at him? And according to established legal precedent, was Shelby’s shooting justified?

We do not know enough information to answer those questions. An investigation needs to uncover what Shelby, or the other police officers, told Crutcher, and what Crutcher did, during the moments before Shelby fired her weapon.

Enough of these killings have happened to unarmed Black people that citizens can and should begin to ask more serious questions about circumstances that justify police officers using deadly force against citizens.

The case that set the standard on when police officers are justified in using excessive force is Graham v. Connor. In the 1989 Graham decision the Supreme Court held that a standard of “objective reasonableness” determined if a police officer’s actions while making an arrest, issuing a search and seizure warrant, or making a stop, violated a citizen’s fourth amendment rights. The summary of the Court’s ruling explains,

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.

So, how can the shooting and death of Terence Crutcher stand up to legal scrutiny according to the “objective reasonableness” standard set in Graham?

Terence Crutcher, right, was fatally shot by Officer Betty Shelby, left.
Terence Crutcher, right, was fatally shot by Officer Betty Shelby, left.

Exceptions to Fourth Amendment protections against search and seizure, in this case excessive use of force in an arrest, have to satisfactorily apply “objective reasonableness” to at least three criteria: (1) did the arresting officers already have the apprehended person subdued by other means; (2) was the apprehended person attempting to flee; (3) were there exigent circumstances that required force beyond that which an objectively reasonable police officer would need to apply in that situation. Perhaps most important in understanding the Graham decision: the “objective reasonableness” standard does not take into consideration intent or motive. As Chief Justice Rhenquist said in the Supreme Court’s ruling, “objective reasonableness,”  also cannot consider, “the 20/20 vision of hindsight.” It has to deal with the facts of the situation. It has to ask if an officer’s use of force was objectively reasonable in any and all such situations.

In short, would another, objectively reasonable officer, in the exact same situation do the exact same thing?

Based on video evidence, before Officer Shelby shot Terence Crutcher – or simultaneously as she shot him – Crutcher had already been shot with a taser gun by one of the officers on the scene.

The video makes clear that Crutcher was walking back to his car.

His hands look raised.

“That looks like a bad dude, too,” said one police officer who observed the scene unfold live. “He could be on something.”

The video shows at least four officers on the scene. Early details from the investigation indicate the officers claiming that Crutcher attempted to reach into his car before Shelby shot him. The video’s footage is inconclusive on that issue.

Whether or not, or how, these officers will answer for Crutcher’s death hinges on application of the holding in Graham.

Did Officer Shelby have reasonably objective grounds for applying additional, deadly force according to the criteria through which investigators use the Graham holding to determine justified uses of force: was the suspect already subdued; was the suspect attempting to flee; did exigent circumstances demand excessive force?

That third criterion – exigent circumstances – is the one where arresting officers literally get away with murder. A police officer can claim fear for his safety, or the safety of his fellow officers, or other citizens. This claim usually passes scrutiny when an officer is alone. In this case, Officer Shelby was surrounded by several other officers.

So this situation begs the question: on what objectively reasonable grounds did the officer require using deadly force to subdue Terence Crutcher? What made Crutcher a “bad dude?” Did his size, color and sex factor into that assessment? Does a Black male, walking towards a car, with hands raised, engaged by four trained police officers cause a level of fear that warrants deadly force? Are these objectively reasonable conditions to justify a death penalty?

This is a question that concerns the entire nation.

If widespread violation of a fundamental Constitutional right (the Fourth amendment) continuously occurs to citizens, this issue is bigger than either the personal experiences of law enforcement officers, or individual citizens.

The Fourth Amendment exists to protect everyone.

If violations of it result in wrongful deaths, it is incumbent on all citizens to know when, where, how, and why that happens, and what we can do to fix it.

If allowances for excessive force according to the Graham holding are applied in discriminatory fashions – if these allowances apply when arresting officers consistently use excessive force on people from certain races, colors, regions, or economic classes, but not on others – than those practices may violate the Fourteenth amendment, and possibly the Civil Rights Act.

Objectively reasonable fears for an officer’s safety exist.

But such a standard cannot become shields to protect against murder or brutality or coercion.

That is not a nation ruled by law and order.

It is a nation ruled by fear-driven deadly force.

And that is not a nation in which anyone should live.

This article originally appeared on Common Dreams.

Brian Purnell is Associate Professor of Africana Studies and History at Bowdoin College. He is the author of Fighting Jim Crow in the County of Kings: The Congress of Racial Equality in Brooklyn (University Press of Kentucky, 2013), which won the New York State Historical Association’s Dixon Ryan Fox Manuscript Prize. His research, writing, and teaching areas generally fall within the broad field of African American history with specific concentrations in urban history, oral history, civil rights and black power movement history, and modern United States history. He is writing an African American history of New York City since 1626 and an oral history-driven narrative of the Brooklyn-based activist-educator, Jitu Weuis.

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Comments on “Does Fear of Black Men Satisfy the “Objective Reasonableness” Standard?

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    Thank you for this article. You raised some excellent points! This issue is a lot bigger than just a handful of isolated incidents affecting a tiny percentage of people.

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    I am so sick about hearing blacks this cops that.
    Here are some true facts and true statistics all in black and white “the numbers don’t lie”

    Cops killed nearly twice as many whites as blacks in 2015. According to data compiled by The Washington Post, 50 percent of the victims of fatal police shootings were white, while 26 percent were black. The majority of these victims had a gun or “were armed or otherwise threatening the officer with potentially lethal force,” according to Mac Donald in a speech at Hillsdale College.

    Some may argue that these statistics are evidence of racist treatment toward blacks, since whites consist of 62 percent of the population and blacks make up 13 percent of the population. But as Mac Donald writes in The Wall Street Journal, 2009 statistics from the Bureau of Justice Statistics reveal that blacks were charged with 62 percent of robberies, 57 percent of murders and 45 percent of assaults in the 75 biggest counties in the country, despite only comprising roughly 15 percent of the population in these counties.

    “Such a concentration of criminal violence in minority communities means that officers will be disproportionately confronting armed and often resisting suspects in those communities, raising officers’ own risk of using lethal force,”

    More whites and Hispanics die from police homicides than blacks. According to Mac Donald, 12 percent of white and Hispanic homicide deaths were due to police officers, while only four percent of black homicide deaths were the result of police officers.

    The Post’s data does show that unarmed black men are more likely to die by the gun of a cop than an unarmed white man…but this does not tell the whole story. In August 2015, the ratio was seven-to-one of unarmed black men dying from police gunshots compared to unarmed white men; the ratio was six-to-one by the end of 2015. But Mac Donald points out in The Marshall Project that looking at the details of the actual incidents that occurred paints a different picture:

    Black and Hispanic police officers are more likely to fire a gun at blacks than white officers. This is according to a Department of Justice report in 2015 about the Philadelphia Police Department, and is further confirmed that by a study conducted University of Pennsylvania criminologist Greg Ridgeway in 2015 that determined black cops were 3.3 times more likely to fire a gun than other cops at a crime scene.

    Blacks are more likely to kill cops than be killed by cops. This is according to FBI data, which also found that 40 percent of cop killers are black. According to Mac Donald, the police officer is 18.5 times more likely to be killed by a black than a cop killing an unarmed black person.

    Despite the facts, the anti-police rhetoric of Black Lives Matter and their leftist sympathizers have resulted in what Mac Donald calls the “Ferguson Effect,” as murders have spiked by 17 percent among the 50 biggest cities in the U.S. as a result of cops being more reluctant to police neighborhoods out of fear of being labeled as racists. Additionally, there have been over twice as many cops victimized by fatal shootings in the first three months of 2016.

    So everyone needs to get there facts straight.

    So you all probally heard during this years grammy awards that no blacks were selected. However they failed to say well that’s ok because we already have our own awards for the black community, could you imagine if the white folks had there seperate Grammys! Oh hell no that wouldn’t fly!
    Since we are on the subject how African Americans aren’t racist but whites are.
    Here are a couple more facts that don’t support this. So the African Americans have there own grants yep that’s right once again. African Americans have there own colleges as well. This is just a couple examples the list go’s on.
    Its just a fact that people will be people and adults, teenagers and kids will always judge one anouther.
    I will never be racist however I do judge people at times.

    I just wanted to share some of my feelings no harm in a little freedom of speech.

    God bless you all

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      Dear Diablo,
      You are frustrated, which is understandable. It is frustrating to consider how our justice system provides so little justice and how cops and the citizens they police suffer so much from this. This should make any citizen angry and confused.
      You shared many ideas, none of which really addressed my central question: what did Terence Crutcher do to deserve a death sentence? Was him being Black and male – and moving, with his hands raised and shot with a taser gun and on the side of an empty road surrounded by four officers – and the officer’s fear for her safety in those situations an “objectively reasonable” situation that justified using deadly force?
      Remember, intent and motivation cannot factor into the answer. So your point about black people committing so much more violent crime is irrelevant. In fact, if that type of outright bias factored into the explicit reason behind police officers using deadly force against Black citizens, those actions would probably constitute violations of the Fourth and Fourteenth Amendment and the Civil Rights Act. A police officer cannot use excessive force outright on entire classes of people just because she associates those people with crime and violence. Was Terence Crutcher (or many of the other cases we have seen these past two years) behaving violently? And if so, what did he do specifically to show violent behavior that necessitated deadly force?
      I like reading Heather MacDonald too, but her overzealous defense of police officers in any and all situations is exactly the type of low bar for scrutiny and accountability that invites corruption. Excusing improper uses of excessive force that disproportionately kill or cripple or abuse citizens of a certain race, color, or class as a normal consequence of the geography of crime erodes the credibility of the entire justice system. It also, I would argue, makes it harder for good cops, honest cops, to do their jobs the right way.
      Last, my questions about the application of the Graham holding apply to all law enforcement officers, regardless of their race. I never mentioned officer Shelby’s race because it is irrelevant.
      If we have a Constitutional protection for law enforcement officers to apply excessive, even deadly force, against anyone and everyone who makes them afraid, regardless of whether or not that person instigated lethal violence against the officer, other citizens, or themselves, Diablo, that is very, very dangerous. Again, it is bad for cops and the citizens they police.
      As for the Ferguson effect — it has always existed in poor Black and Hispanic and white and Asian and Native American communities. It just didn’t have a name. We used to just call it bad policing. But in an attempt to use the BLM movement to turn cops into victims, Mac Donald and others have given bad policing a name that, once again, blames the victims of bad policing for their own suffering at the hands of an unjust criminal justice systems. It is quite clever, really. I don’t know how much it really helps cops or citizens.
      I appreciate the discourse, Diablo. There’s never harm in a little free speech, or a lot of it, for that matter.
      God Bless you too!

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      Brian is being incredibly gracious because it is his article but I do not need to be nearly as nice. How dare you come to a place for African-American history and launch attacks against us! I am baffled as to why you visited this site, other than to troll us and express hatred. You never even answered any of the questions asked by the article. As Blacks begin to stand up for themselves and rediscover their pride and love for themselves, I’ll bet it makes you quite uncomfortable! It turns your entire worldview upside down. How about you explore that? And why spend even one moment going to a site devoted to something that you do not like, simply in order to attack it? How about providing something positive to a cause that you feel good about?

      As for your “God bless you” at the end of your rant, let me give you a little Christian education.

      Matthew 7:21 ► “Not everyone who says to me, ‘Lord, Lord,’ will enter the kingdom of heaven, but only the one who does the will of my Father who is in heaven.

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