It is only a slight exaggeration to say that Michael Brown’s blood is on the gavel of the federal judiciary. In the past couple of decades, the courts have made it all but impossible to hold police officers accountable before juries. Is it any wonder officers think they can kill with impunity?
We know how Michael Brown, 18, was killed in Ferguson, Missouri — a police officer shot him to death. What we don’t know is why the shooting occurred.
The law gives to police officers the right to use deadly force. But that right is not without limitation. All citizens, at least in theory, enjoy the right guaranteed by the Fourth Amendment to be free from unreasonable searches and seizures. As interpreted in a series of cases by the United States Supreme Court, that includes the right to be free from unreasonable force, colloquially known as police brutality.
Police officers are trained to use violence. They attend police academies where they are taught about command presence, various chokeholds and takedown maneuvers they can do with their hands. They are trained in the use of a variety of other tools, including batons, pepper spray, Tasers and, of course, in this gun-loving culture of ours, firearms. They are expected to use these tools and techniques when circumstances warrant.
There’s no recipe on how much force an officer can use when faced with a threat. Many departments rely on the concept of a continuum of force, a rough calibration of force and perceived threat of harm. We’ve not yet devolved to the point where jaywalkers can be shot on sight, for example. All departments teach that deadly force can be used to overcome an imminent, or immediate, risk of serious physical harm to an officer or others.
Press accounts make it unclear what precipitated the Brown shooting. If, as reported by some, Brown, who was African-American, was in a struggle with Darren Wilson, the 28-year-old Caucasian officer who fatally shot him, the overwhelming odds are that the courts will hold the shooting justified. Indeed, so strong will be the court’s view of the matter that the case will never see the light of day in a courtroom. No jury will ever decide on the matter. No community will be permitted to speak.
If, as has also been reported, Brown was doing no more than walking down the middle of the street disrupting traffic and was stopped by Wilson, then there is no justification for the shooting. Brown may have mouthed off, he might have even disregarded Wilson’s order to stop, but there is no justification for killing in these limited circumstances.
The Fourth Amendment is written for all to see in the Constitution. So is the Seventh Amendment right to a civil jury trial. What is not written in the Constitution is the legal doctrine the courts have fallen in love with and rely upon to keep police misconduct cases from going to trial — qualified immunity. This doctrine sprung from the fertile imagination of a judiciary sick and tired of presiding over civil rights cases. It is a product of a judicial revolution no one noticed, a revolution that has effectively closed the courts to ordinary people seeking justice.
Fifteen or so years ago, a friendly federal judge pulled me aside to warn of what was coming. New Haven lawyer John Williams and I were partners at the time. “Norm, the judges are getting angry. There are too many civil rights suits on the docket. You guys need to get more lawyers and get ready. The courts are going to push back.” So we did. We hired two new lawyers and took more office space, and then waited for cases to be called to trial.
Instead of trials, we were barraged with paperwork. Judges began to grant qualified immunity to police officers, a doctrine that, effectively, ends litigation when a judge throws a case out of court because in his or her judgment the police officer is entitled to the benefit of the doubt in a close case. In other words, jurors, we the people, lost the ability to sit in judgment over the violence done in our name by a lifetime elite far removed from the communities in which police violence occurs. Police officers are free to act with impunity, at least in so far as the courts are concerned, unless their conduct is truly shocking.
The courts have made it easy, too easy, for police officers to escape the judgment of their communities. By substituting judicial conceptions of what is reasonable for that of the communities actually policed, we’ve made tinderboxes like Ferguson inevitable. The St. Louis suburb has long complained of police violence. The courts, blinded by legal doctrine, refused to see. It is small wonder the streets of Ferguson have erupted in violence.
Police departments nationwide have militarized at the same time the courts have made individual officers virtually immune from suit. Young officers like Wilson have been trained in a culture of violence. Do towns like Ferguson really need retired military equipment and SWAT teams to help patrol residential neighborhoods? Do we? Who protects us from the police?
Law enforcement officers in distressed communities rely on a strategy known as “broken windows” to keep crime down. By focusing on such small quality of life factors as petty vandalism and loitering, police can create an environment in which a sense of order reduces the likelihood of more serious crime. At least that’s the theory.
Residents of Ferguson are applying a little broken window theory of their own. When kids are gunned down by cowboy cops and the courts are closed to ordinary people, they’ve decided to break a few windows of their own. The message? “No justice, no peace.”
I’ll go so far as to say that if more communities reacted as Ferguson is reacting, there’d be less, not more, police violence. If the courts refuse to hold police officers accountable, communities will. When justice fails in the courts, it will find a home in the streets.
"If you gaze long enough into the abyss, the abyss will gaze back into you." I think about this line of Friedrich Nietszche's more often than I care to admit. The practice of law hasn't mellowed me; if anything, it's made me more cynical, perhaps too cynical. The sad fact is that I no longer believe the courts administer anything like justice.
So it was with a sense of relief, even kinship, that I started reading through the summer 2014 edition of Daedalus, the quarterly publication of the American Academy of Arts and Sciences. The issue bears a thematic title: The Invention of Courts.
I was at first put off when reading the introductory essay by Linda Greenhouse, a member of the academy and former Supreme Court reporter for The New York Times, who, in retirement, now teaches at the Yale Law School. She promised a collection of essays from judges and academics. Not a practicing lawyer among the contributors. Practice conceived isn't theory relieved, I muttered.
Judith Resnik's essay on courts as democratic institutions won me over. Vanishing trials, a managerial judiciary, the rise of alternative dispute resolution, ubiquitous plea bargaining—all are contributing to a marginalization of trial as a public and transparent source of public meaning.
"Courts," she concludes, "are one way to link individuals, entities, groups, and government in a common quest for the much-contested content of justice. The diminution of opportunities to use open courts impoverishes the status of individuals and the effectiveness of government."
Amen, I wanted to say.
Trial is a legitimizing exercise, giving ordinary people serving as jurors the right and power to decide what justice requires in a given context. Yet the judiciary seems to fear jurors. We're told trial is wasteful. Juries must be kept from knowing too much of the truth about the parties appearing before them. And, above all, jurors must not be permitted to depart from the law's script—hence, the terror over the prospect of jury nullification.
Do we sell ourselves short by scorning juries?
In the period ending March 31, 2013, there were 86,095 criminal defendants in the federal courts nationwide; 83,614 of them pleaded guilty, according to Federal Judicial Caseload Statistics. In other words, more than 97 percent of federal criminal cases ended with pleas of guilty.
The prosecutorial view of this statistic is that it proves the system works. The innocent aren't being prosecuted. Why look! Look at all the guilty pleas! Prosecutors are making the world safe for ordinary people, right?
I doubt it. Federal criminal courts look more like slave auction houses than courtrooms. Attend a federal sentencing hearing sometime and listen to the ridiculous haggling over sentencing guidelines. Judges behave like algebraic idiot savants seeking to compress human behavior into simple equations. The public can attend these hearings, to be sure, but the gibberish that passes for justice is meaningless to all but the participants.
Resnick's essay cites Jeremy Bentham, the great 19th-century utilitarian and judicial reformer. Publicity transforms meaningless rites into enforceable rights, with the public capable and able to pass judgment over judges who, during trial, would themselves be "on trial," Bentham wrote.
Vanishing trials yield a diminished sense of legitimacy.
Find yourself a copy of the recent issue of Daedalus, but don't ask me for mine. I'm working my way through the essays, making a list of books and articles to read. The courts are sick unto death. Perhaps lawyers can help save them.