The deaths of Michael Brown and Eric Garner offer a chance to reconsider the law on police use of deadly force. Under current Fourth Amendment law, police are forgiven the use of such force if it was objectively reasonable for them to believe that they faced an imminent risk of harm. The trouble with most deadly force cases is that dead men can't talk. No one speaks for the victim, thus leaving officers the chance to create the chance to testify unopposed by a competing narrative.
A better rule would be to create a rebuttable presumption that deadly force is unlawful, and to refuse police officers charged in deadly force cases to rely upon such vehicles as summary judgment to avoid trial. In other words, require public trials in cases in which officers kill a citizen.
Thanks to doctrines such as qualified immunity, it is extremely difficult to get a police misconduct case to a jury. Judicial dicta recites the need to keep police officers on the street, and to shield all but the plainly incompetent from the ordeal of trial. The doctrine quickly becomes a license to kill.
Those wary of an activist federal judiciary rarely decry the development of qualified immunity. Yet this is a doctrine steeped in concern for judicial economy, and having no constitutional or statutory basis. It is as though the federal judiciary awoke one day and concluded there were too many police misconduct cases clogging its docket. So it slammed the courthouse door on most litigants, arrogating to itself the right to give police officers a pass in close cases.
Fifteen years ago, students at the annual Practicing Law Institute's seminar on police misconduct received a two-volume text. Tucked away at the back of the second volume was a brief article on qualified immunity. In recent years, the entire second volume is devoted to the explosion of qualified immunity decisions. It is judicial activism run riot.
Our office gets many calls each month about police misconduct. We rarely take such cases. There's little point in taking a fee to file a writ that has about much chance of getting to trial as does an unarmed man outrunning a bullet. More often than not, you can guess to a distressing degree of exactitude what a police report will say based on what a potential client or their family relays about an incident. Police officers are trained, after all, about what recent court decisions have to say about immunity: they know what magic words to recite when in a jam.
It's small wonder many folks have lost confidence in policing when the judiciary has decided that evaluating the conduct of police officers is a task jurors cannot handle. Justice has become an insider's game.
The public would be better served if police use of force cases were evaluated in a public trial. In the cases of Brown and Garner, I suspect the result would be the same—the men would not be found liable. But at least there would be transparency in the process. The public would learn the law, and have a chance to see justice in action.
In cases resulting in death, jurors should be told that there is a presumption that the killing of a citizen is excessive force. That presumption alone would work a revolution in the evolving police state in which we all live.
In too many cases, the only surviving witnesses are the officers who either killed or witnessed the killing; they have powerful personal and institutional reasons to avoid telling a complete and candid truth. Let juries decide whether the magic words often recited to justify the killings are more than mere talismans.
It will likely take legislation to accomplish these reforms. The courts have dug in on immunity issues. The cost is a deepening crisis of legitimacy as the public comes to question why it is impossible to hold those with the power to kill accountable.