By Judge William McCurine, Ret.
The date was April 29, 1992. Earlier in the day, a jury had just returned a verdict in the Rodney King state court case. After seven days of deliberations, the jury acquitted all four officers of assault and acquitted three of the four of using excessive force. I was stunned and sank into a deep depression. I knew that this time police brutality would be recognized and punished. The video evidence was so clear. How could a jury return such a verdict?
My wife and I had invited a group of Black high school students to accompany us as our guests for the Lamb’s Players Production of To Kill a Mockingbird. Our tickets were for the evening of April 29, 1992. I told my wife I was too depressed to go. She insisted that I had to go. We had invited these young Black students and we had to be with them. I sequestered myself briefly to pray. I needed to honor these students and we needed to continue to press forward. By the end of the play, my heart was uplifted. The four officers were later tried in federal court in 1993. Two of the officers were found guilty and had to serve prison terms. Two were acquitted.1 There was still hope.
The continuing murder of young Black men by police officers began to strangle that hope. When our two sons reached their pre-teens I sat down with them and had the talk. Every Black parent has had the talk: “We need police, but beware of them. If a policeman stops you for any reason, make sure you are in public view as much as possible, move very slowly, announce what you’re going to do before you do it (e.g., ‘I’m reaching for my driver’s license.’) Do not argue with them. Be respectful.” I have had this talk repeatedly with our sons because I knew what could happen. This is not the simple talk about respecting police. Every parent should have a talk with their children about the need to respect police, their elders, school officials, etc. The talk in the Black community is designed to make sure our sons are not killed.
Despite the outcome of the federal verdict in the Rodney King case, police brutality continues to plague the Black community. But now for the first time since Rodney King, my hope has been rekindled. Now, for the first time, it seemingly appears that the larger society finally understands how strong negative racial attitudes continue to break the heart, but not the will, of an entire community. For years, African Americans have been frustrated because the larger society has not believed us. Too many people have thought that we have exaggerated the problem of police brutality or that the victims brought the problem upon themselves in some way. But now many people of goodwill are asking, what can we do?
First, police are too prone to escalate conflict, not to defuse it. Officers need to be trained to de-escalate situations. Police departments that effectively train and enforce de-escalation need to be rewarded with better pay and benefits. Furthermore, the highest pay and prestige in a police department should not be just for those who are trained for military-style operations like SWAT teams, but also for officers skilled in defusing potentially volatile situations. We also need to curtail the inflow of military-style weaponry into police forces. Such force is far less frequently needed than solid, community-oriented policing. Defunding is not the answer. It can have disastrous effects for all people, and I believe it would be particularly hurtful to the Black community. Defunding would also tend to drive away the better police officers. I would rather increase the police budget for the express purpose of bringing into the department professional social workers and community builders. They would be unarmed police officers enjoying the same status and benefits as regular police officers. Finally, police departments need to do a far better job of (a) screening applicants and (b) weeding out officers who cannot, or do not, comply. This goal cannot be achieved without somehow reducing (not eliminating) the power of police unions, which are so resistant to reform. Second, society should not demonize police. We need capable, community-minded police officers to maintain peace and order for everyone. Many police officers have a sincere desire to serve their communities. Like all of us, they want their communities to look up to them.
Third, many of the police shootings of young Black men arise when there is no crime in progress, involving petty crimes, traffic stops, or non-capital offenses. The widespread existence of negative racial attitudes affects civilians as well as police who are only a microcosm of the overall society. As a result, too many police and civilians view Black people as violent threats regardless of the actual situation. For example, two civilian white men (Gregory and Travis McMichael, father and son) confronted Ahmaud Arbery while he was jogging in an Atlanta neighborhood. The McMichaels told the police that they saw Arbery jogging and immediately thought he was a burglar, even though Arbery had no burglary tools or contraband on his person. Arbery found a pickup truck blocking his path. A white man was standing beside the open driver’s seat door, brandishing a gun, and another white man was standing in the truck bed. Arbery attempted to go around the vehicle. Within minutes, Arbery was dead from a shotgun blast. District Attorney George Barnhill described Arbery as the aggressor and announced that the shooting was “justifiable homicide.” Despite video evidence,the Atlanta police did nothing for weeks until public pressure forced the Public Prosecutor to charge the McMichaels with murder and aggravated assault.
In 2012 George Zimmerman, a neighborhood watch coordinator, felt free to confront 17-year-old Trayvon Martin who was walking in a gated community where his father lived. Zimmerman’s defense was that Trayvon was wearing a hoodie. Within minutes, Zimmerman shot and killed an unarmed Trayvon Martin in “self-defense.” The jury acquitted him. After the verdict, then President Obama said: “Trayvon Martin could have been me, 35 years ago.”
There is nothing inherently wrong with the judicial doctrine of qualified immunity or with the objective reasonableness standard in adjudging the use of excessive force under the Fourth Amendment. The U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 (1989) said that the reasonableness of an officer’s use of force “must be evaluated from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” At 396. Graham instructed courts to defer to the judgment of the officer because police officers are often forced to make split-second judgments about the use of force in tense, rapidly evolving circumstances. At 396-97. However, it appears that deference has swung so far as to render verdicts against police officers almost impossible. In wrongful death cases like George Floyd’s, where the police officer was not forced to make a split-second decision and the offense is a misdemeanor, the deference the Supreme Court requires is unnecessary and should be eliminated. Changing legal standards might help, but the persistent problem remains negative racial attitudes that cause civilian and police encounters with Black people to escalate into tragedy. The vast majority of laws today uphold the rights of all people regardless of race. Despite salutary laws, police brutality continues.
We need an improved police culture. We also need people of goodwill to teach their children, co-workers, and colleagues to honor all people. What does that look like? We need to treat all people with respect and dignity. We need to consider all people to be as good and well-intentioned as we see ourselves until they prove otherwise.
I look forward to the day when our own children can have a different talk with their children about police. “Respect and obey the police. They are here to help you, and they might even save your life one day.”
- In a separate civil lawsuit in 1994, the City of Los Angeles awarded Rodney King $3,800,000 in damages.
Judge William McCurine, Ret. was appointed a Federal Magistrate Judge for the Southern District of California in 2004 where he served for over 10 years. Prior to the bench, he was a civil trial attorney representing plaintiffs and defendants for over 30 years.