A young unarmed black man is suspected of committing a petty theft, is confronted by a police officer and, trying to flee, he is shot in the head and killed. His grieving family and angered community turn to the legal system to vindicate his life; to stand for the idea that no system can be labeled a justice system if it ignores the killing of a young man merely on suspicion of a minor crime. Though outraged, they are told to put their faith in the legal system, to let justice run its course. They are told they will be heard.
I am not writing of the recent tragic death of 18 year-old Michael Brown in Ferguson, Missouri but rather that of Edward Garner, in Memphis, Tennessee some 40 years ago. (No, not Eric Garner, the unarmed Black man who was choked to death just over a month ago by police on Staten Island... sigh...) That long ago case was both simpler and more complicated than the latest painful eruption in Ferguson. Simpler because though Garner had stolen a purse with 10 dollars from a home, there was also no question that he was unarmed and running away from the police officer when he was shot and killed. The case was more complex because at the time, police in Tennessee were permitted to shoot even unarmed suspects, to stop them from escaping. The undercurrents of the case were even more complicated than the one currently faced in Missouri. Edward Garner, killed all those many years ago on a dark night in Memphis, was shot by Elton Hymon, an African-American police officer.
Why bring up this nearly four decades old case in the wake of (yet another) unarmed black man shot by a police officer? Because Edward Garner does not just haunt the questions surrounding the shooting of Michael Brown; the 40-year-old shooting in Memphis undermines the answers so many are offering as the "solution" to our problems in Ferguson. The indictment is stark; in the face of ceaseless cycle of police violence turned frustration turned community violence, families who have lost their sons and communities torn apart deserve more than being placated by hastily adding a few darker faces to the police force and admonitions to let the system play out. We all need more than the oft-repeated milquetoast, "America needs to start a conversation..."
Take the first popular answer, focusing on the complexion of the Ferguson police department. Various commentators have noted that less than a handful of police officers in Ferguson are African-American. The Ferguson police force, like too many across the country, has come to look too much like a foreign occupation force as that city has grown increasingly African-American over the years. Attempting to make some political and symbolic progress, Governor Nixon nominated Daniel Isom II, a former St. Louis police chief to become the director of the state's Department of Public Safety. Isom would become the only African-American in Governor Nixon's cabinet.
It is important for a variety of reasons that police forces exhibit diversity; it is important that all citizens see themselves reflected in those who are charged with enforcing the law by force. But remembering the death of Garner should give pause in assuming that adding African-American police chiefs and officers will be a panacea to the deep structural tension between much of the African-American community and the police. Garner's shooting revealed that violence and death are aimed at black men; the Supreme Court was shown evidence that black suspects engaged in similar behavior as white suspects were over twice as likely to be shot at by police. It remains true today that African-Americans are disproportionately more likely to suffer from incidents of police brutality.
But just as Garner was shot dead by an African-American police officer, at the time one of only a handful on the Memphis police force, it remains questionable that merely adding officers of color will lead to a decrease in either unjustly disproportionate policing or, for that matter, unjustifiable police force. As Yale law professor James Forman explores in a forthcoming book, there is little evidence to suggest that having more African-American police officers or even political leaders by itself changes police practices.
The second response to the mass unrest in Ferguson has been the common refrain, "Let the system play out." By itself, the phrase seems unassailably right. With conflicting eye-witness reports and the inherent dangers of being a police officer, no one should rush to judgment. Still again, the 40-year old case is telling. The shooting of Edward Garner resulted in a case that went all the way to the Supreme Court and a ruling that finding that shooting unarmed suspects who pose no danger to the community was, in the dry language of the law, an unreasonable method of seizure. Yet a funny thing happened on its way up the courts.
By the time the case reached the Supreme Court, there was no mention at all of the racial disparity in the violence visited on citizens. More to the point, the highest court in our land has, time after time, refused to thoughtfully address the interaction between race and policing, either dismissing it casually or refusing to mention it at all. In one particularly startling example, when addressing the racial impact of the nearly unfettered discretion of the police to pull over drivers, the Court held that an officer's motivation, whether racist or not, has no effect on the reasonableness of a stop. Motorists who felt the police targeted them due to race would have to prove it in the notoriously difficult to prove 14th Amendment litigation. Thus, the Court insulated the police from being called to account for stopping African-Americans for "driving while black."
The point is not just that our legal system is impoverished in allowing conversations about the interaction of race and policing but that our current jurisprudence purposefully turns a deaf ear to many of the complaints of African-Americans and other minorities regarding the routine use of police force.
Because the easy answers in Ferguson fall far short of what is needed so I will not end by offering any quick solutions of my own. Whatever the answer, it requires much deeper engagement between police and minority communities that evidences respect, concern and care; that give voice to real frustrations and create enough trust that police and citizens see themselves as partners in a civic project rather than as enemies and occupiers. One example may be found in Los Angeles, which despite its troubled past (and present) is currently also dealing with a police shooting of Ezell Ford, unarmed African-American with much more success. In the words of the Los Angeles Assistant Police Chief, Earl Paysinger, "We've learned that community outreach can't wait for the day when you're in trouble and need help."
We will all mourn Michael Brown's death and wait to know more about what happened that night. What is clear, however, is that platitudes about "starting a conversation" will not do. From Edward Garner to Michael Brown, ghosts from long ago intoned that easy answers will not do.