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The Voice of the Black Community


Police violence against civilians 30 years after Graham v. Connor
Charlotte court case on use of force still relevant
Published Wednesday, May 15, 2019 1:10 pm
by Michael Banerjee

Graham v. Connor legalizes police violence against civilians, which has far-reaching ramifications for African Americans.

On March 25, Wende Kerl, a white police officer, shot and killed Danquirs Franklin, a black civilian, in the parking lot of a Burger King in west Charlotte.  Kerl ordered Franklin to drop his gun, and killed Franklin when he attempted to do just that, based on body camera footage reluctantly released by the Charlotte-Mecklenburg Police Department.

This killing by police—one of hundreds that have taken place across the country in 2019 alone—was wholly avoidable, and is part of a sordid history of police violence against black people in the U.S. Why is it that police officers get to decide who lives and who dies in Charlotte and elsewhere? Why is it legal for police officers to kill just about anyone they choose?

To begin to answer these questions, we must travel back in time exactly 30 years, to May 15, 1989, when the U.S. Supreme Court handed down its decision in Graham v. Connor.  However, in order to understand that decision, we must first go back to Nov. 12, 1984 to a house on Mayfair Avenue in Charlotte, not more than a 10-minute drive from the Burger King at which Kerl took Franklin’s life.

On that day in 1984, DeThorne Graham, a diabetic black civilian, experienced an insulin reaction while at his home on Mayfair Avenue.  Graham notified a friend, who drove him to the nearby Pilot Service Station on West Boulevard in search of something to counteract the reaction.  What should have been an uneventful trip to the convenience store led to an ordeal, outlined in Graham’s testimony, that would change the course of constitutional history.

During the ordeal, police officers handcuffed Graham, slammed his head into the hood of a car, and withheld medical treatment even though he had broken no law.  He was left with a broken foot and abrasions, among other injuries.

Graham sued the city of Charlotte and the officers involved, claiming violations of both federal and state laws, in the federal court located on Trade Street. The case would eventually make its way to the U.S. Supreme Court.

On May 15, 1989, 400 miles north of Charlotte in Washington, D.C., the Supreme Court released its decision. It held that the lower court had not conducted the correct legal analysis, and sent the case back to the lower courts for further proceedings. In so holding, the Graham Court further legalized police violence, which we know to be racialized. But how?

According to Graham, courts are to evaluate all claims of police violence, deadly or otherwise, under the Fourth Amendment to the US Constitution, which prohibits unreasonable searches and seizures. Note that the court categorized police violence as “seizures.”  In a 2016 law review article, UCLA law professor Devon Carbado concluded that “the Supreme Court has interpreted the Fourth Amendment to protect police officers, not black people.”  This point is not lost on police officers: it has been noted that “cops view Graham as journalists see the First Amendment.”  

When evaluating claims of police violence, according to Carbado, courts first ask whether “a police officer’s conduct constitute[s] a search or seizure under the Fourth Amendment.”  Next, courts ask whether “the search or seizure [is] reasonable, and hence justified.” When courts reach the second question, the answer is usually that the police action was reasonable, which does not bode well for black folks.

Graham further exposed black people to police violence by asking only if the violence was contemporaneously reasonable, and by asking this question only after the fact.

In his 2017 book “When Police Kill,” criminologist Franklin Zimring estimated that between 929 and 1,217 people are killed by police in the U.S. every year.  According to Zimring, blacks account for 26.1 percent of these killings, while accounting for only 12.2 percent of the US population. This is perhaps the first time we have reliable data about the magnitude and racialized nature of deadly police violence. We can now begin to understand just how much deadly violence police do unto black people with the Supreme Court’s assent.

Danquirs Franklin will not be the last black person the police kill in Charlotte. High-tech interventions, such as holster-activated body cameras, will not end the violence.  Neither will more or different police training.  Neither will transparency workshops. Neither will victim-blaming.  This is because these approaches do nothing to constrict the power of the police to do violence.  

The police violence legalized by the Supreme Court in Graham 30 years ago continues to plague black communities.  Until a radically different approach to police violence—one that reins the police in rather than rubber-stamps even their most deadly abuses—is adopted by the court, the blood the police spill in Charlotte and elsewhere around the country will continue to be found on the hands of the justices of the Supreme Court.

Michael Arjun Banerjee is a third-year student at Harvard Law School.  Starting in the fall, he will be a PhD student in Jurisprudence and Social Policy at University of California Berkeley.  He can be reached at mbanerjee@jd19.law.harvard.edu.


Powerful, timely article!
Posted on May 19, 2019

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