Episode 12: Police Brutality is Legal - Part 1

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Transcript, Web links and Credits below.


It’s Monday, April 15th and today I am beginning a three part series where I will unpack and explain something that I need each of you to understand. Police brutality is legal in this country. It is. It is functionally legal in the United States for police to be brutal. Yes, we need good district attorneys. Yes we need good juries. Yes police departments need to change a hundred different features of how they police. But until we address this deeper core issue of the legality of the brutality, it’s my belief that much of our fight against it will be in vain. Some problems take more that one episode to unpack. So this is the first of a three part series on why police brutality is legal in the United States.

This is Shaun King and you are listening to (THE BREAKDOWN)


Over the past 5 years I’ve written over 1,500 stories about injustice in America. I’ve studied thousands of cases of police violence and I’ve worked directly with hundreds of families that have experienced it. And even though most media outlets have stopped telling the stories, police brutality is as deadly as its ever been in the entire history of the country. Do you know why?

For all intents and purposes, police brutality is legal in America. Police policy manuals may discourage it and communities across this country may absolutely despise it, but the bottom line is that our courts are condoning it each and every time officers who brutalize people are set free.

And the list of people unjustly killed by American police is long. It doesn’t have dozens of names. It has thousands and thousands of names. Over the past 10 years alone over 10,000 men, women, and children have been killed by American police. In many developed nations, over the same period of time, police have killed fewer than 100 people. In some nations, police have not killed a single person in a generation. American police, on average, kill at least 3 people per day. Some days it’s many, many more.

Conservatives and liberals alike seem to at least agree that most police departments have at least a few bad apples, but the bottom line is that nearly none of those bad apples — including the most egregious, heinous, despicable officers in America — are being held accountable for their repeated crimes against humanity. The officers who killed Tamir Rice come to mind. The officer who shot and killed Rekia Boyd in Chicago comes to mind. The cop who killed Ezell Ford in Los Angeles comes to mind. The cops who killed Alton Sterling and Philando Castile and Terence Crutcher come to mind. The officer who killed Eric Garner comes to mind. Even in the worst cases, the bad apples still aren’t facing justice.

What I am about to say are the clearest, most unmistakable words I've ever used on police brutality. Two Supreme Court cases, Tennessee v. Garner and Graham v. Connor, have effectively legalized police brutality. And police brutality will continue to remain fully legal until these cases are confronted head on. Over the next three days I am going to break these cases down for us, and then give us some clear action items we can take, and solutions we can build together, to fight back. Until we do this, justice will be exceedingly rare for us – no matter how hard we fight.

(BREAK IT DOWN & DJ’s Scratching)

Today I need to tell you a story that is at the center of why police brutality is legal in America. This story is adapted from two articles that I originally wrote for the New York Daily News during my time as the Senior Justice Writer there.

On the night of Oct. 3, 1974, 15-year-old Edward Garner, an unarmed 110 pound Black middle school student in Memphis, Tennessee, was accused of stealing a wallet with $10 in it.

When Memphis Police Officer Elton Hymon spotted Edward climbing a fence to get away, the officer shot Edward in the head and killed him. He had no reason to believe Edward had a gun. The officers didn't see a gun. Edward was, in fact, unarmed. He had no reason to believe that Edward was a physical threat to anyone. Edward was a tiny boy. In fact, the theft, was a misdemeanor, but young Edward Garner basically received the death penalty over it.

Of course this was an unjust response to such a petty crime, but at the time, Tennessee had a law dating all the way back to slavery in 1858 — as did 20 other states — which made it fully legal for a police officer to shoot a "fleeing felony suspect" in order to "effect an arrest."

Edward's father, Cleamtee Garner, was, of course, outraged. His son made a mistake, but it should not have cost him his life. For months, then years, Cleamtee Garner fought the Memphis Police Department and the State of Tennessee with everything he had to get some semblance of justice for his son.

He relentlessly sued the city of Memphis, he sued the mayor of Memphis, he sued the officer involved, and the Memphis Police Department — all on grounds that his son's rights were violated and that the use of deadly force against his son wasn't just excessive, it was extreme. It became the mission of Cleamtee Garner to get some type of justice for his son. He spent every time and every free bit of time he had on this case.

A full nine years later, the Sixth Circuit Court of Appeals, a federal body, sided with Mr. Garner and ruled that the 120 year old law that allowed Officer Hymon to shoot and kill Edward Garner should be struck down immediately because it violated the Fourth Amendment's protection against unreasonable seizures.

Edward's father won an enormous victory. It was covered at the time as a huge victory in the fight against police brutality. Up to that point, it was unheard of for a Black family to win such a legal victory against a police department.

Interestingly, though, current U.S. Supreme Court Justice Samuel Alito, then an attorney in the Reagan administration, wrote a very strong 15-page brief arguing that the circuit court had made the wrong decision, and that police should be able to shoot fleeing suspects like Edward Garner. Emboldened by Alito's stance, the city of Memphis decided to appeal the ruling all the way to the U.S. Supreme Court.

Eleven years after young Edward Garner was first shot and killed by Memphis police over a wallet containing $10, the U.S. Supreme Court took the case, that case is Tennessee v. Garner, and in it, the majority of the Supreme Court ruled that the Sixth Circuit was actually right in striking down the Tennessee law permitting the police officer to shoot and kill young Edward Garner. The decision was widely celebrated by the legal community and the civil rights community as a huge victory for victims and families who fought against police brutality.

Now, I’m about to get super wonky for a second, and read you some of the beautiful parts of the Tennessee v. Garner decision that were widely celebrated.

In Tennessee v. Garner, the Supreme Court explained that shooting a fleeing suspect dead is indeed constitutionally unreasonable. And here is how they said why, leaning on the 4th Amendment.

"The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement .... we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects."

"The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects."

What I just read to you was worth celebrating. The Supreme Court flat out said that it simply is not justifiable to take the life of a fleeing suspect just so that you can arrest them. In fact, if you shoot and kill them, you can’t arrest them. The Supreme Court – with Thurgood Marshall being a primary voice in the matter – made it clear that young Edward Garner should not have been shot and killed – that it was wrong – and that killing him violated his constitutional rights. And 99% of the entire decision was like this – it went on and on and on about the value of a human life, the value of being able to have your moment in court, the value of a fair process of justice.

But then, in the middle of it all, was a poison pill. Just one sentence – in fact, just one word, that would forever change the course of what police would say and do to justify their shootings. Let me read that sentence from the decision to you. It says,

“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

Do you wanna guess what the single word in that sentence is that has cause so many problems? It’s damn near impossible to disprove.

The word is – believe. The Supreme Court said that if the officer BELIEVES a suspect poses a serious threat to them or to others – deadly force is permissible. Believe is an impossible word – because how can we ever prove what the officer did or not believe in the moment. They only have to tell us that they believed something – and unless we have some type of evidence that they were lying – some rare recording where they say they didn’t actually believe it – proving otherwise is as rare as winning the lottery.

With each passing year since this decision was made, police officers have grown more and more creative in shaping their own narratives and excuses for brutality to fit within the lines defined by that one single sentence of Tennessee v. Garner. It states, in essence, that police can use deadly force on a suspect if the officer has been threatened with a weapon — or if they have cause to believe the suspect has committed, or will commit a violent crime unless the officer intervenes with deadly force.

What looked like a victory for those fighting against police brutality was actually a neutron bomb that would destroy thousands of cases of legitimate instances of police violence. By introducing belief, which apparently does not have to be rooted in fact, into what police are allowed to claim, it is now nearly impossible to prove what officers do or do not believe. The burden of proof to refute the claims of what an officer says he or she believes is so outrageously high, that pretty much the only thing that could contradict it would be a recording or testimony of some type - in which it is proven that the officer actually did not believe they were in danger and is only faking the belief for the sake of the legal case against them. And today officers are being trained to never make this mistake. Consequently, once an officer claims that they believed they were in danger, or that the community was in danger, that case, and any case like it, is probably dead in the water.

For instance, the officers who killed Philando Castile, Amadou Diallo, Walter Scott, Tamir Rice, John Crawford and hundreds of others each claimed that they believed they were in grave danger when they shot and killed each of the victims. They weren't in danger, but that's not what Tennessee v. Garner requires. It simply requires that the officer reasonably believes that danger was a real possibility. Amadou Diallo could not have shot four NYPD officers with his wallet, but that didn't matter, because the officers sufficiently convinced the court that they believed his wallet was a gun, and that if they did not shoot him immediately, that they could all be shot and killed. Never mind that Amadou had never touched a gun a day in his life or that he was as sweet and peaceful as a man as you could ever meet. Tennessee v. Garner doesn't give a damn about that. If an officer believes something, they are empowered to use lethal force as an extension of that belief. The facts do not have to back up that belief.

That one sentence from the Supreme Court is the modern framework for modern police brutality. Tomorrow I am going to share with you a new case, Graham v. Connor, that actually doubled down on Tennessee vs. Garner. And I need you to understand these two cases, first off, because I want you to understand why even the worst cops keep getting let off, but the real reason I need you to understand them is because on Wednesday I am going to tell you what I think we should do about it.


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Produced by Willis Polk II

Additional Production by Ryan Wisler

Additional Instrumentation by: Christian Idris “Idrys” Shannon, Lance "Lance Fury" Powlis & Markeith Black

Additional Engineering by Amond “AJ” Jackson for Salem Psalms Library

Additional Vocals by Garnett “Natti” Bush

Scratches by Kenny “DJ FlipFlop” Vanderberg