Opinion

opinion | Nancy Gertner

There will be more Fergusons

It isn’t surprising that a grand jury on Monday ruled against indicting police officer Darren Wilson in the fatal shooting of Michael Brown last August in Ferguson, Mo.

Although many are saying that the decision may have to do with race, it is more likely that Wilson is not facing charges because courts have decimated the law that holds officers accountable for excessive force, rulings that make incidents similar to Ferguson all the more likely.

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For example, two months before the Brown shooting, the US Supreme Court ruled in Plumhoff v. Rickard that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Arkansas, pulled over a white Honda Accord because the car had only one operating headlight. Rather than get out of the car, as police requested, the driver sped away. The police took chase for more than five minutes, with the cars reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger. No weapons were found.

The Supreme Court ruled for the officers: Since the driver posed a “grave public safety risk” when he drove away, police were justified in shooting at the car to stop it. Whatever it took to stop the car was fine to the Court. There was no issue of what triggered the encounter — a minor traffic offense, rather than a violent crime. There was no issue that there were other alternatives to shooting to kill — aiming at the tires, taking the license plate number, ramming the vehicle. Instead, the court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

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The touchstone for evaluating police conduct was its “reasonableness,” a balance between a defendant’s rights and public safety. But “reasonableness” is notoriously imprecise. And courts can tip the balance: In Plumhoff, the Supreme Court gave special deference to the officer’s version of what happened, because officers make split second judgments, under tense circumstances. The message: Shoot first, think later, and you can count on being exonerated.

This is a particularly troubling given the “stop and frisk” programs that target young African American men and can escalate to deadly force — stops for crimes like stealing cigarillos, which Brown was accused of, or the traffic stop in Plumhoff. Even if such stops are justified by law, we expect officers to be trained to keep them from spinning out of control.

In order to better ensure police accountability, a civil rights lawsuit is often more effective than a criminal prosecution. The criminal charge against Officer Wilson was an uphill battle. The prosecutor had to agree to present the case to grand jurors; a majority of the grand jury had to agree there was probable cause to believe a crime was committed. And jurors at a trial would have to be persuaded of Wilson’s guilt beyond a reasonable doubt, a high bar.

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In contrast, a civil suit starts with the victim’s family and requires a much lower standard of proof at trial. Such a suit will likely be brought here. And while a civil suit is brought in the name of the Brown family, it serves a critical public function. The civil rights statute was passed to redress constitutional violations, to hold officials accountable.

Still even this last line of defense — a civil rights action — is being gutted by the courts. Unless the courts change course and deal meaningfully with deficiencies in police training and supervision, unless they stop turning a blind eye to police misconduct, the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in any court. Unless the courts deal with these issues as they were supposed to do when the civil rights statute was passed decades ago, there will be more Fergusons.

Demonstrators marched in New York Monday night in anticipation of the announcement of the grand jury’s decision.

AFP/Getty Images

Demonstrators marched in New York Monday night in anticipation of the announcement of the grand jury’s decision.

Nancy Gertner is a retired federal judge and a professor at Harvard Law School.
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