An Unreasonable Standard

It was 2015 in a suburb of Cincinnati when a married police duo, Vicky and Buddy Coburn received a call after dinner about a murder. While driving, they spotted the suspect, a man named Michael Wilcox, in his car, forced him to pull over, and went to talk to him. Buddy recounts: “[Wilcox] starts waving his hands around. And he gets this evil, evil look on his face. He’s screaming, screaming, kill me, kill me, you blankety blank…  kill me. And he says, I did it. I did it. I killed her. I got a gun. Kill me. And he lunged forward.” From there, Wilcox tried to grab Buddy’s gun, and then lunged again, this time towards the floorboard of his vehicle. Vicky and Buddy restrained him, but Wilcox managed to start his car and began driving, dragging both the officers.

Wilcox escaped the Coburns, but 30 minutes later, was confronted by another police officer, Jesse Kidder. Wilcox left his vehicle and ran at Kidder. “Shoot me, shoot me,” Wilcox said again and again, still running forward. “I don’t want to shoot you, man,” yelled Kidder as he backed up. Wilcox placed his hands in his pockets, and refused to follow the officer’s orders to put his hands in the air. “Shoot me, or I’ll shoot you,” he said. Backup arrived, and Wilcox was arrested.

The Kidder-Wilcox interaction was captured on video, and Kidder received nationwide recognition for the restraint he demonstrated. Like Vicky and Buddy Coburn, Kidder had grounds to shoot. Wilcox’s lunge for an officer’s gun, his declaration of being armed and making threats, his dragging two officers with his vehicle, his running forward, and his refusal to remove his hands from his pockets are all grounds for police officers to judge their lives to be in imminent danger. Yet none of the three officers fired on Wilcox. Wilcox is white.

In a recent essay for Public Seminar, Louis Colombo calls attention to what he considers an underexplored feature of police shooting cases: the pervasive culture of fear in the United States. Colombo sets aside questions of race not because they are unimportant, but in order to condemn the police use of lethal force on other grounds. Colombo wants to challenge the idea that fear licenses actions that stem from fear, that feeling fear is a valid reason for a police officer to kill someone.

However, what results is an analysis that is racially sanitized. (To be fair, this is not characteristic of all of Colombo’s Public Seminar essays.) Unchecked fear plays a role in police shootings, to be sure. But as the Michael Wilcox case illustrates, fear is not all-encompassing. We need to address who is feared — a matter which ends up playing a hidden but important role in U.S. law concerning the police use of lethal force. My overall argument is this: The idea of policing black individuals has shaped case law affording police officers considerable subjective discretion. In policing black individuals, police officers are more likely to feel threatened. It is when they feel threatened that police officers make use of the considerable subjective discretion that the law gives them.  

In case law governing the use of force by police, a key concept is “the reasonable officer standard,” which Colombo also discusses. This standard derives from the 1989 Supreme Court case Graham v. Connor, in which Dethorne Graham, a diabetic black man, sued Officer Connor for injuries he sustained during an encounter. (Graham was suffering from an insulin attack and behaving erratically as he tried to buy orange juice at a convenience store. Connor, judging him to be drunk, subjected him to a rough arrest.) Because of Graham, use-of-force cases are to be “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” By design, this standard “embod[ies] allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.”

On its face, the reasonable officer standard would seem to be, well, reasonable. However, in practice, the standard gives a great deal of subjective latitude to police officers. Training protocol in compliance with Graham does not require officers to put their lives at risk by waiting to actually see a weapon. Officers are instead trained to pick up specific cues indicating that an individual is a threat. These are cues that laypeople, including judges and jurors, would not recognize without guidance, as the perspective of a “reasonable officer” is distinct from that of a “reasonable person.” We can see this in the account offered by Officer Betty Shelby, controversially acquitted after shooting a 40-year old black man, Terence Crutcher: “His shoulders drop, his arm drops, and he’s reaching in. And it’s fast. Just that would tell any officer that that man’s going for a weapon.”

Graham moreover licenses “split-second” judgments, giving the officer significant subjective leeway in characterizing an encounter as “tense, uncertain, rapidly evolving.” “I made a split-second decision,” Ray Tensing, the Cincinnati officer who shot a black man, Samuel DuBose, told jurors in his criminal trial. “The experts can sit here and evaluate it and study the bodycam and break it down, but they were not in my mind during those seconds.”

Though Graham was a police use-of-force case involving a black civilian, ostensibly there is nothing racial about the reasonable officer standard itself. Nor are the standards laid out in three cases analyzed by legal scholar Paul Butler in a recent law review article — Terry v. Ohio, Scott v. Harris, and Whren v. United States — which respectively concern stop-and-frisk, high speed vehicle chases, and traffic stops. But these cases all expanded the discretionary leeway given to police officers, and concerned encounters between the police and African American civilians.

Butler, to be clear, is not claiming that in each case the verdict reflected a biased decision directly stemming from the civilian’s race. Moreover, he discusses the expansion of police powers in another case, Atwater v. City of Lago Vista, in which the civilian is a white woman. His argument is rather that black people are the paradigmatic subjects in police–civilian encounters. “These cases would come out differently if the main people who suffered the police powers were white,” Butler writes.

Here, Butler is referring both to the over-policing of black communities and individuals, and more broadly, to the longstanding American practice of associating blackness with criminal propensity. “[T]he Negro is believed to be stupid, immoral, diseased, lazy, incompetent, and dangerous — dangerous to the white man’s virtue and social order,” Gunnar Myrdal wrote in An American Dilemma. Comparing black subjects to their white counterparts, this idea of dangerousness can prove to be more potent than knowledge of actual dangerousness.

Consider: Samuel DuBose and Terence Crutcher were unarmed and not criminal suspects; Wilcox was a murder suspect declaring himself to be armed. Ray Tensing shot DuBose during a traffic stop because he believed he was about to drag him with his vehicle; Vicky and Buddy Coburn were dragged by Wilcox’s vehicle. This is not to say that white people are never killed by the police. Wilcox may have gotten lucky. Nevertheless, black people are 2.5 times more likely to be killed by police overall, and five times more likely if unarmed, than white people.

Vicky Coburn, Buddy Coburn, and Jesse Kidder, all three of whom are white, denied that Michael Wilcox’s skin color was the reason for sparing his life. Ray Tensing and Betty Shelby, who are also both white, denied that race was a factor in using lethal force against Samuel DuBose and Terence Crutcher. And there are many reasons why an officer would not admit misconstruing a black person’s behavior as threatening because of his being black. Inegalitarian racial beliefs violate dominant social norms, thus there are strong presumptions in favor of not seeing oneself as racist. Moreover, disclosing that racial bias inflected one’s decision to use lethal force would likely run afoul of the advice of the officer’s lawyers, whose job it is to build a legal case around legitimate self-defense.

But there is another reason. If an officer learns at the academy that there are certain motions that may indicate that a civilian is reaching for a weapon, at which point she acts reasonably in using lethal force, she is likely to believe that she did exactly what she was trained to do. And my point is that, in a certain sense, she did. But surely the law would not allow this if the main subjects of police powers were white. Here the bleak title of Paul Butler’s above-mentioned law review article is worth mentioning: “The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform.”

In analyses of race and the police use of force, there is some talk of not focusing on “rotten apple” police officers but rather on “rotten orchards,” that is, cultures within police departments characterized by overzealous tactics and racial bigotry. But we can instead say that the orchards are working the way they are supposed to.

Many have observed that the image of Michael Brown’s dead body lying in the street, on display for four hours in the hot summer sun, evokes the lynchings of an era not so distant from our own. The orchards, far from rotten, are healthy and well-ordered. Yet the trees, they bear strange fruit.

Jennifer M. Page is a postdoc at the Center for Ethics at the University of Zürich.