• Terry Ang

Police brutality from a legal perspective

Updated: Aug 7

Preamble

This article does not justify the actions of the police officers in these cases. It unravels the legal loopholes these police officers have exploited, illustrating the shortcomings of policing regulations in the U.S.


In the United States of America, all policing legislation originates from the Fourth Amendment of the U.S. Constitution.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

During the early 1960s, the police practice of "stop-and-frisk" was vague and not thoroughly developed by courts. Stop-and-frisk allows a police officer to stop any person for questioning and brief clothing search without requiring any consent. Given the problematic nature of being searched without consent, this legal issue then went under review in 1968 by the U.S. Supreme Court in Terry v Ohio.



First Precedent: Terry v Ohio

The facts of the case in Terry v Ohio concerned a police officer and three defendants. Officer McFadden suspected that three of the men were preparing to rob a store. After conducting a stop-and-frisk on the men, the officer found pistols on two of them and arrested them. In Court, the defence argued that the discovery of the pistol should not be in evidence. They argued that the frisk was a violation of the Fourth Amendment. Eventually, the appeals made their way up to the U.S. Supreme Court. On an 8-1 decision, it decided against the men, upholding that 'stop-and-frisk' was a constitutionally sound procedure.



Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest.
"Without a probable cause"


The decision in Terry v Ohio opened the floodgates for litigation surrounding police stop-and-frisk. In Tennessee v Garner 471 U.S. 1 (1985), police officers killed a man resisting arrest. In the Court of Tennessee, the Police Department argued that Statute grants a police officer the "right to use all necessary means to effect the arrest." Since there are no limits to all necessary means, an officer could theoretically incapacitate a fleeing suspect. However, in Graham v. Connor, the U.S. Supreme Court struck that down as constitutionally unreasonable. In Graham v Connor 490 U.S. 386 (1989), the Supreme Court stated in a 9-0 decision that what constitutes reasonable force is an objective test. The test assesses what' reasonable force' is from the circumstantial perspective of the police officer. Therefore the police officer is held to the 'objective reasonable person' standard regarding excessive force.


Considering these conflicting rulings, how have these laws impacted American citizens? Do these current laws provide loopholes that facilitate injustice among police officers?



Eric Garner

Now that we have illustrated the legislative underpinnings, let’s dive into the details of how these police killings happened.

A police officer approached Eric Garner after the officer suspected that Garner was selling individual cigarettes without tax stamps. During the attempted arrest, NYPD officer Daniel Pantaleo used a prohibited chokehold on Garner, resulting in his death. Not unlike the case of George Floyd, Eric Garner gasped for air, stating that he could not breathe.


"I can't breathe"

Medical experts have declared Garner's death as a homicide as the autopsy showed that there is intentional compression of the neck and chest in a prone position by another person. Within Procedure 221-01 of the NYPD’s Patrol Guide, a chokehold is defined to be

“shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air.”

The term any pressure is very vaguely defined here, maybe because a blanket ban on any sort of pressure to the neck might be a hindrance to job execution. However, I would argue that this is a ludicrous point as any person would understand the provision would definitely not have such wide statutory interpretation to the point that “total suffocation of airflow” would still fall within its ambit. Remember, Eric Garner gasped for air, stating he can’t breathe a total of 11 times.


Unbelievably, the jury did not indict Pantaleo. Critically, Pantaleo remained on the job as a police officer for five more years after Garner's death. Although the Garner family did reach an out-of-court settlement, with the City of New York paying up to $5.9 million, arguably, the injustice after Garner's death continued even after the settlement payout.



Michael Brown

The injustice and prevalence of police brutality continued in the case of Michael Brown. Michael Brown was only eighteen when white police officer Darren Wilson shot him. Wilson tried to legitimise his "excuse" by stating that he was struggling to apprehend Wilson. The truth is that the justice system did not apprehend Michael Brown or Timothy Loehmann when he shot Tamir Rice.


The jury process was much different from normal American jury proceedings, and this led to a lot of discussions. The proceedings, evidence and testimony were released to the public, which was atypical to the usual jury process where most of them are kept secret. This led to a much longer trial, as well as complications from too much evidence and conflicting testimony.



First-degree murder in Missouri law is defined as “knowingly causing the death of another person after deliberation upon the matter”, while second-degree murder is defined as "knowingly caus(ing) the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person”. This law, however, does not apply to law enforcement officers in their line of duty. University of Missouri Law School professor Frank O.Bowman argued that Missouri law is lenient on killings by law enforcement officers, and the way the Revised Statutes of Missouri was drafted gives a lot of leeways for police officers to be acquitted when they kill civilians.



Tamir Rice

In the eyes of the law and those that loved him, Tamir Rice was a twelve-year-old boy whom Timothy Loehmann shot. Loehmann was responding to a police dispatch call to a male who was allegedly carrying a firearm. At the time of dispatch, Officer Loehmann did not know that Tamir Rice was holding an airsoft toy gun at that time.



In Ohio, there is this obscure law that allows citizens with the “knowledge of facts” to file affidavits demanding an arrest. An analogy provided by The Atlantic:

If you were a shopkeeper, and you caught a thief robbing your store, it was your responsibility to bring him to justice. A constable might help you chase and catch the thief; but that was all.

After the petition, municipal Court Judge Ronald Adrine stated that the officers should be charged with several crimes. However, a recent 2006 amendment has prohibited judges in Ohio to issue such arrest warrants. This means that Judge Ronald Adrine was only able to issue an opinion of arrest to the County Prosecutor.


When Judge Adrine’s opinion was forwarded to County Prosecutor Timothy McGinty, McGinty disregarded it and sought two pro-police bias experts to further bolster the officer’s non-guilty plea. The grand jury decided to not indict the police officers because the evidence purports how Rice was unravelling a firearm from his waist. This decision was particularly disappointing because the jury failed to regard the fact that Rice was a 12-year-old boy.



Breonna Taylor

She was sleeping when white police officers Brett Hankison, Jonathan Mattingly, and Myles Cosgrove forcefully entered her house. The officers and fired 32 shots at both her boyfriend and Breonna. Until today, only Brett Hankinson is facing wanton endangerment charges and none of the other officers facing homicide charges.


This case has become politically charged because of the problematic Attorney-General that is handling the case, Daniel Cameron. In the U.S., a grand jury will determine whether a defendant will be charged or indicted of serious felonies. When the lawyers for Breonna Taylor’s boyfriend requested for the release of the transcript between Daniel Cameron and the grand jury, it was noted that Daniel Cameron did not present or recommend homicidal charges to the grand jury. Some parts of the recordings were not released, with the attorney general’s office saying that they were not recorded. A juror even submitted a court motion that stated how Cameron had mischaracterized the proceedings and used the jurors as a shield to deflect accountability and responsibility.


The FBI is currently conducting an independent investigation into Breonna Taylor’s murder. Out of this tragedy, there were several favourable legislative and policy amendments. The city council of Louisville has voted unanimously to ban no-knock search warrants and require officers to wear body cameras for at least 5 minutes before and after a warrant is served. The law is called Breonna’s Law. On a Federal Level, the Justice in Policing Act and Justice for Breonna Taylor Act was introduced. The prior seeks to prohibit no-knock warrants in drug investigations and the latter requires officers to provide notice of his or her authority and purpose while carrying out a warrant.



Conclusion

The previous tenant of the White House seems to purport that it is not a race issue, stating that “by the way, more white people are killed by police”. They were stating that "by the way, more white people are murdered by police". On the surface, the statistics seem to support his statement since 54% of deaths caused by police are Caucasian, while African-Americans make up 25%. However, that statistic masquerades as a lie. Because in reality, American Caucasians make up the majority of the people in the U.S, by 63%. In contrast, African-Americans only make up 12% of the population. However, they amount to more than a quarter of all deaths.


It was hard to analyse and write an article surrounding such a topic from a purely academic standpoint. A lot of conservative judges and academia have resulted in literalism and originalism to justify the actions of these police officers. This approach has negated the overlooked humanity aspect of policing and criminal law. It is essential to understand that racial overtones still underpin the majority of these cases. There are still many antagonistic contrarians that are disgruntled with Derek Chauvin's guilty verdict. Arguably, this public discontentment is enough evidence of how a lack of understanding and discrimination continues to thrive in the face of police brutality instead of the brutal truth.



Journal articles, books, gov. department websites and essays




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