Even if the killing of Eric Garner were not filmed for the world to see there would have been nothing mysterious about why or how it occurred. The police kill far too many unarmed citizens each year, especially unarmed black citizens, and each time such a killing occurs, and the institutional obstacles to police accountability then are raised, it underscores one of the great unspoken realities about criminal justice in America: the rule of law we cherish and obey is not always compatible with our collective sense of justice.
In the case of police shootings, of unarmed citizens, of citizens who are black or brown or otherwise marginalized, the rule of law in America today manifestly sides with the government and not the individual. This is not a new development. It has been this way or centuries. But it was not sui generis. Nothing in the Constitution requires us to have laws and rules that afford the police such broad immunity. We all are responsible for enacting, endorsing, nurturing, and defending these laws. And that means we also could change those laws if we wanted to.
As a matter of law, lawmakers and state judges (and the justices of the United States Supreme Court) have for generations endorsed and broadened legal standards governing the “use-of-deadly-force” by the police that give the benefit of virtually every doubt to virtually every cop in virtually every confrontation with a citizen. How little is reform in this area a priority for most lawmakers? In Missouri, for example, the state didn’t even bother to change the language of its use-of-force statute following the Supreme Court’s decision in Garner v. Tennessee.
As a matter of politics, prosecutors rarely indict police officers no matter how great the national outcry or how grave the perceived injustice lest they anger their local constituencies. And even when local officials gin up the courage to press for more accountability police union officials rise up to impede, or destroy, the reforms. You cannot consider the case of Eric Garner, for example, without considering the case of the eight white police officers (and one Hispanic officer) who two weeks ago sued Cleveland complaining they were discriminated against in favor of black police officers. The case they are whining about? They shot 137 rounds at two suspects in 2012 in Cleveland, the city just cited by the Justice Department for its pervasive use of excessive force by police officers.
One expert I spoke with last week told me that police unions around the nation, not just in Missouri and New York, are by far the greatest obstacle to reforming the rules governing deadly-use-of-force. And not just those rules. We learned a few weeks ago that police unions blocked the Congressional effort to reduce police militarization, to restrict the policies and practices that result in local cops driving military assault vehicles on suburban streets. Have you heard an outcry against the conduct of these public unions from the same folks who have been so outspoken lately taking on the conduct of other public unions? Neither have I. Thinking any 2016 candidate for the presidency is going to take on police unions? Me neither.
Nor should anyone expect the use of chokeholds like the one used on Garner to ease anytime soon. A generation ago, in 1983, Supreme Court Justice Thurgood Marshall wrote a blistering dissent about the use of police chokeholds on black men. But it didn’t change anything. The use of this tactic still is pervasive despite regulations designed to limit its use. And there is no reason to think this Supreme Court is going to change any of this. It is a Court that has, instead, consistently stood with police officers and prosecutors when it comes to immunity and accountability.
Will Americans demand at last that the police account for all the citizens they kill so that we can understand the scope of the problem? Will they elect prosecutors and politicians who can push police unions into more accountability and transparency? Will they press state lawmakers to restrict use-of-force standards? Will they, in other words, be willing and able to change fundamental components of our “rule of law” so that a cop who kills as Daniel Pantaleo killed Eric Garner at least has to face an honest, earnest cross-examination in open court at trial? Or a rule of law that requires officers not to open fire immediately upon encountering a 12-year-old boy playing in a park with a BB gun?
It’s hard not to be pessimistic — and cynical— given the extent of the divide that exists today over race and policing. I suppose in some ways it mirrors the larger gulf about race, the two solitudes, that we are only now beginning to acknowledge again in public debate. But let me end on a note of hope. If there is one good thing that has come from this string of sad stories it is that a new generation of Americans now is aware that this problem exists — and has for ages. Whether this new awareness translates into a political or legal push for new policies and practices is yet another open question worth asking as this troubled year winds down.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.