Stephon Clark. Michael Brown. Eric Garner. Walter Scott. Laquan McDonald. Freddy Gray. All unarmed black men killed by police officers.
Clark, the most recent of these victims, was killed on March 18 by two Sacramento police officers who fired 20 times at him. The officers said that they saw a gun, but all that was found was a cellphone near Clark’s dead body. We must do a better job of understanding how this happens, of preventing it from occurring, and of holding police departments and police officers accountable when tragedies take place.
I have been saying this for a long time. Eighteen years ago, I was asked to do a study of the Los Angeles Police Department in the wake of the Rampart scandal, which involved police officers planting evidence on innocent people and then lying in court to gain convictions. I interviewed more than 75 police officers and was tremendously impressed by their professionalism and courage.
I, however, concluded in a 200-page report that there were serious systemic problems in the LAPD that created a culture that tolerated police violence. I also have seen this in cases I have handled, including one where a police officer mistakenly shot at a car and killed three people within it.
All of this convinces me that a police killing like that of Stephon Clark is not a random mistake, but a reflection of much deeper problems in policing in the United States. To be sure, I agree with Mayor Darrell Steinberg that there has to be much better training of police in the use of non-lethal alternatives, in handling confrontations, and in the implicit racial biases that shape behavior.
But such training is not enough. We must do a better job of identifying officers who have a propensity to use excessive force. When I did my report on the LAPD in 2000, they had no system in place for tracking the disciplinary records of officers. Los Angeles has since created such a system, but the California Peace Officers’ Bill of Rights makes it difficult for the public to access information about officers’ disciplinary history.
The U.S. Supreme Court has made it very difficult to hold officers and police departments accountable. In 1982, in City of Los Angeles v. Lyons, the court made it often impossible for federal courts to enjoin illegal police practices. Adolf Lyons, a twenty-four-year-old African-American man, was stopped by the police for having a burned-out taillight. An officer administered a chokehold on Lyons and rendered him unconscious. When Lyons awoke, he had urinated and defecated. He was spitting blood and dirt. He was given a traffic ticket and allowed to go.
Lyons discovered that 16 people in Los Angeles had died from the use of police chokeholds; almost all, like him, were African-American men. Lyons sued the city of Los Angeles for an injunction to stop police officers from using the chokehold except when necessary to protect the officer’s life or safety. The Supreme Court, in a 5-4 decision, ruled that Lyons could not sue for an injunction because he could not show that he personally was likely to be choked by the police again in the future.
The court said a plaintiff who is seeking an injunction must show a likelihood of personally suffering future harm. This makes it enormously difficult to get an injunction against abusive police behavior.
At the same time, the court has made it very difficult to sue cities for money damages when there is excessive police force. The court has held that a city can be held liable only if its own policy violates the Constitution and causes the excessive force.
Likewise, the Supreme Court has greatly limited the ability to sue an officer who violates the law. For example, the Supreme Court has held that officers have “absolute immunity” and cannot be held liable for money damages for testimony they given in court, even if it is perjury and even if it leads to the conviction of an innocent person.
And in case after case, the court has said that police officers cannot be held liable for the use of excessive force because they did not engage in behavior that “every” reasonable officer would believe to be unconstitutional.
All of this contributes to the problem of police violence. So much needs to be done so the list of victims does not continue to grow.
May Stephon Clark’s tragic death be an impetus for this community and our state to take meaningful action.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at firstname.lastname@example.org.