The recent killing of Rayshard Brooks has gotten me thinking about my first Criminal Procedure class, where I sat, shocked and agog, as I learned that it’s often perfectly legal for police officers to shoot fleeing suspects in the back. When you look at the jurisprudence on the topic, you can take some comfort in the notion that courts have made some effort to create some limitations on the circumstances where shooting someone in the back is “allowed”. (Before Tennessee v. Garner, in 19-freakin’-85, there were virtually no circumstances under which a cop would not be allowed to shoot a fleeing suspect in the back. Armed, unarmed, who cares…if they had the audacity to try to run, shoot ’em.) But even with some limitations, the deck is still incredibly stacked against the idea that a police officer will be held accountable for shooting someone. Isn’t it time to shuffle and recut these cards?
Separate and apart from the legal standards that give cops their license to kill, there’s something else that’s infuriating and heartbreaking about that officer shooting Mr. Brooks. The empathy chasm that must have existed in those moments is just unfathomable. How could those officers look in Mr. Brooks’s eyes and not understand the terror he must have been feeling? As George Floyd’s name was on the lips of every person of conscience, how could they have not known in their bones that they needed to do everything humanly possible to make sure Mr. Brooks got out of that encounter alive? And yes, good people, I know Mr. Brooks grabbed the taser. Was that wise? Nope. But was that understandable? It absolutely was. And those officers still had non-lethal options for responding to Mr. Brooks, and it is unconscionable that they didn’t use them.
The lack of empathy that resulted in the killing of Rayshard Brooks brought to mind another senseless death, that of Sandra Bland. Malcolm Gladwell uses the story of Ms. Bland’s arrest (which resulted in her death while in police custody) as the introduction to his most recent book, Talking to Strangers: What We Should Know About the People We Don’t Know. In his study of communication, Malcolm Gladwell explores how a simple traffic stop could have gone so badly wrong and resulted in a young life ended so senselessly and prematurely.
The thing that seemed clear in Ms. Bland’s situation is that when she was stopped, she asserted her rights, maybe a little stridently, (but she could, and that was her business), and the arresting officer was offended. In this battle of wills, he was not going to lose, so he kept pushing. And what should have been a warning, maybe a ticket, resulted in her getting hauled to jail, and in three days she was dead. Why couldn’t he just empathize with her frustration and then just cut the encounter short? If there must be a citation, why not write it quietly, hand it over gently, and then let her be on her way?
When I have been pulled over, my emotional reaction has inevitably been a ton of anxiety. But by the power of white privilege (and white lady privilege at that), the officers I’ve encountered have been able to conjure enough empathy to read my behavior as anxiety and not something that was threatening to them. But for Sandra Bland, for Rayshard Brooks, for Philando Castille, and so many others, it was apparently impossible for the officers who confronted them to even try to feel what they were feeling. If they had, perhaps those encounters would have ended the way all of my encounters with the police have ended, with a friendly admonition to not go so fast, and a cordial wish to have a nice day.