Hard Cases

Posted in: Law Enforcement

Hard cases teach the best lessons. Everyone can condemn the murder of George Floyd, but the very egregiousness of the police behavior in that case limits the lesson. Of course the police ought not drive a knee into a helpless man’s neck for nearly nine minutes. If that’s all we mean by police reform, then we’ve set the bar pretty low. But most cases of lethal police violence are more complicated. In an age when serious and thoughtful people are calling for the abolition of the police, what are the lessons we should draw from the killing of Rayshard Brooks?

In case you haven’t seen the videos or read the coverage, Brooks had fallen asleep in his car in the drive-thru lane of an Atlanta fast food restaurant. The police were called. An officer roused Brooks, directed him to park his car in a parking space, ordered him from his car, performed a sobriety test and called for backup. After asking Brooks some questions about how much he had had to drink, the officer, who by this time had also determined that Brooks was unarmed, decided to arrest him for drunk driving.

Up to this point, Brooks had been compliant and cooperative. But as an officer was beginning to handcuff him, he resisted. A scuffle ensued between Brooks and the two officers, who all fell to the ground. One officer took out his taser and pointed it at Brooks, who grabbed it away from him. Brooks managed to extricate himself from the officers and began to flee, carrying the officer’s taser. The other officer fired his taser at him and gave chase. As he was running away, Brooks turned his upper body and fired the taser back toward the officer, but his aim was wild and he missed badly. As Brooks continued to flee, the officer dropped his taser, took out his handgun, and shot him three times. Brooks died in surgery.

At least with respect to the use of lethal force, this is not a hard case; the police department was right to fire the officer who shot Brooks. But some do not see it that way. They point out, correctly, that Brooks is not blameless, and that he would be alive today had he not resisted a lawful arrest. Yet none of that justifies his murder. We do not know why Brooks resisted, but it doesn’t matter. Even if we grant that the police had probable cause to arrest him for drunk driving (and I grant that), and even if we grant that his resistance was unlawful (and I grant that too), the facts do not justify shooting him as he fled.

Consider what the police knew at the moment Brooks ran away. They knew his name and his address. They had his car. They knew he was not armed. They presumably also knew he was not wanted in connection with any other offense; at least, it would’ve been standard procedure to check, and if he had been wanted, we can fairly assume that would have come out by now. He was a man who, apparently, had too much to drink and fell asleep behind the wheel of a parked car. For reasons unknown, he resisted arrest, tussled with two police officers, and fled. Unless we are prepared to say that flight after resistance, without more, is enough to justify the use of deadly force, we have to conclude the murder was wrongful. Because we are not prepared to say that—at least, I’m not—the shooting was inappropriate and the police department was right to fire the officer immediately. (Whether the officer should be charged is a separate question that I do not address in this essay.)

Though the shooting was clearly wrong, other lessons from the killing are less obvious. At a minimum, officers should not use deadly force to capture a person wanted for drunk driving, assaulting a police officer, and resisting arrest, but that is simply another way of saying the shooting was unjustified. Is there a broader lesson?

One is that Brooks need not have been arrested. I don’t know whether Atlanta has a mandatory arrest policy for drunk driving, but arrest certainly isn’t necessary in every case of drunk driving. The police could’ve immobilized Brooks’ car, given him a summons for drunk driving, and ordered him to appear in court at some later date. Granted, this approach may not work in other circumstances, as for instance if the police stop a drunk driver on the highway. But this stop took place in a residential neighborhood, and Brooks had asked the police if he could leave his car and walk to his sister’s house. That would’ve been a perfectly satisfactory resolution to the matter (assuming they also put a boot on his car to ensure that Brooks didn’t get back into his car and drive off the moment the police left the scene). One way to think about police reform, therefore, is to use this case to reexamine the circumstances that call for a custodial arrest.

But is there an even more radical lesson? Some people want to defund the police entirely. I certainly agree we should all work to create a world in which law enforcement is not necessary. But in the here and now, how would this case have unfolded if there had been no police department? Brooks was, at least apparently, driving drunk. True, he had fallen asleep, but no one imagines he was going to sleep in the drive-thru lane at Wendy’s all night. He would’ve woken up eventually, perhaps when someone honked the horn or tapped on his window, and then we’d have a drunk driver. Is that a situation where we want a police force?

What does society want at that moment? They want Brooks to stop driving and call a cab. I think that’s much more important than any criminal prosecution. But drunk drivers are not known for their good judgment. So let’s suppose someone other than a cop woke Brooks and asked him not to drive off. Suppose Brooks declined the request. Now do we want the police? If we agree that people shouldn’t drive drunk, and I think we all agree with that, then how do we enforce the goal? Many people are calling for the creation of community protection groups as an alternative to a police force. I’m all for that, but let’s ask ourselves how this would unfold. Would the community group have the power to order Brooks not to drive? What if Brooks simply refused their command. How is the order enforced?

And how do we ensure that the members of the community protection group are not simply vigilantes? George Zimmerman was acting on behalf of a neighborhood watch group when he pursued, confronted and killed Trayvon Martin. How much power should these groups have, and how do we make sure it is exercised properly?

As you ponder these questions, remember that Georgia, like every other state in the country and the District of Columbia, authorizes residents to carry a concealed handgun. Georgia requires the resident to get a permit first, but some states don’t even require that. In fact, Georgia is an open carry state, which means that residents with a permit can carry a handgun openly. Let’s say Brooks was legally authorized to carry a handgun, and had it laying on his front seat or in his glove compartment. Now do we want a community group to order him to relinquish his keys? Should the members of the community group also be armed, as Zimmerman was? If so, should we train them in the use of that weaponry? Should we equip them with body cameras, and bulletproof vests, so that they are safe and their behavior is transparent? Suddenly, the community group is starting to sound a lot like the police.

I am sympathetic to the call to shrink the blue footprint and diminish the reach of the carceral state. Indeed, I have made that same call for years. Our ambition should be to limit the police function to those few cases that only the police can handle—that is, to shrink it as far and as much as we safely can. I agree strongly with legal scholar Christy Lopez, who recently explained that defunding the police “does not mean zeroing out budgets for public safety … Defunding the police means shrinking the scope of police responsibilities.”

Even after we have shrunk the police function as far as we can, there will be cases remaining that require the police. Within that sphere, we must insist that police conduct themselves appropriately, so that another Rayshard Brooks is never killed. But do not imagine it is an easy task to identify those few occasions that call for law enforcement. Hard cases teach the best lessons.