THE BLOG
08/04/2016 06:00 am ET Updated Aug 05, 2017

When The Supreme Court Decided Black Lives Don't Matter

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On November 12 1984, a Black man named Dethorne Graham had a run-in with the police in Charlotte, North Carolina. Graham was a diabetic. He felt an insulin reaction developing and asked a friend named William Berry to drive him to a convenience store where he could purchase orange juice to counteract the reaction. When Graham entered the store he discovered a long line of people ahead of him. He realized it might take too long to purchase the juice so he hurried back outside where Berry was waiting in his car. Graham then asked Berry to drive him to another friend's house where he hoped to get some juice.

M.S. Connor, a Charlotte city police officer was sitting in a patrol car in the vicinity of the convenience store. Court records do not detail whether Connor was White, but there is reason to suspect that he was. A witness identified one of the other police officers on the scene as Black, but did not mention the race of the others.

Connor reported that he became suspicious when he saw Graham quickly enter and leave the convenience store. He followed Berry's car and made an "investigative stop" of the two Black men. Connor then returned to his patrol car to call for backup. While Connor was making the call, Graham got out of Berry's car, "ran around it twice, and finally sat down on the curb." Then he passed out.

According to testimony, when the backup police arrived at the scene, one of the officers rolled Graham over on the sidewalk and cuffed his hands tightly behind his back. Berry plead with the officers to get Graham some sugar, but was ignored. Another officer said: "I've seen a lot of people with sugar diabetes that never acted like this. Ain't nothing wrong with the M. F. but drunk. Lock the S.O.B. up."

Several police officers lifted the unconscious Graham up, carried him over to Berry's car, and placed him face down on the hood. When he regained consciousness, Graham asked the officers to look at the diabetic decal he carried in his wallet. In response, according to witness testimony, one of the officers told Graham to "shut up" and shoved his face down against the car. Next, four police officers threw Graham head first into a police car. When one of Graham's friends brought him some orange juice, the police officers would not give it to him.

When Officer Connor finally realized that nothing had happened in the convenience store, he released Dethorne Graham from custody. However, during his encounter with the police, Graham sustained multiple injuries including a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder. Graham later filed suit in the District Court charging that Connor and the other officers used excessive force in violation of "rights secured to him under the Fourteenth Amendment to the United States Constitution."

The District Court and the Court of Appeals both ruled in favor of the police officers. Judges serving on both courts accepted that the police made a good-faith effort to maintain and restore discipline and rejected Graham's claim that the police acted maliciously and sadistically and that he was treated in an unlawful manner. Graham, however, continued to appeal his case all the way to the United States Supreme Court.

In Graham v. Connor (1989), the Supreme Court ruled in a 9-0 decision to uphold the decisions of the lower courts against Graham primarily on technical legal grounds. The justices unanimously agreed that Graham's legal team should have challenged the police actions as a violation of Graham's Fourth Amendment expectation of "objective reasonableness," instead of as a violation of due process. But a six-member majority of the Court went even further.

The majority decision was written by Chief Justice William Rehnquist. Rehnquist, a conservative Republican and jurist, was originally appointed to the Supreme Court by Richard Nixon in 1971. He was appointed Chief Justice by Ronald Reagan in 1986.

Rehnquist argued that the issue was "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation." He rejected the idea that courts should evaluate actions based on "the 20/20 vision of hindsight." According to Rehnquist, "The Fourth Amendment inquiry is one of objective reasonableness' under the circumstances, and subjective concepts like 'malice' and 'sadism' have no proper place in that inquiry." In other words, Rehnquist believed that if a police officer "reasonably" felt threatened by someone, no matter what the actual details of the incident, he or she had the right to employ whatever force they felt was necessary, even lethal force, to protect themselves and others.

Five other Justices voted to support Rehnquist's position. They included Justice Byron White, appointed by John Kennedy, a Democrat, Justice John Paul Stevens, appointed by Gerald Ford, a Republican, and Justices Sandra Day O'Conner, Antonin Scalia, and Anthony Kennedy, appointed by Ronald Reagan, a Republican. Thus five of the six were Republican appointees.

The three Justices who voted with the majority but issued a separate opinion were William Brennan, appointed by Dwight Eisenhower, Harry Blackmun, appointed by Richard Nixon, and Thurgood Marshall, the lone African American on the court who was appointed by Lyndon Johnson, a Democrat. Blackmun wrote an opinion signed by the other two justices. Their concurring but independent opinion gets to the crux of how a conservative Republican controlled Supreme Court ruled that Black lives don't matter.

According to Blackmun, "the Fourth Amendment is the primary tool for analyzing claims of excessive force in the prearrest context, and I concur in the judgment remanding the case to the Court of Appeals for reconsideration of the evidence under a reasonableness standard." However, given admissions made by attorneys for the police officers, "the pleadings in this case properly may be construed as raising a Fourth Amendment claim." In addition, and this is key, Blackmun, Brennan, and Marshall believed a ruling on the Graham case should not set a precedent for other claims of excessive use of force by police. They wanted Graham's case reviewed by a lower court and they wanted the Supreme Court to review other cases on their own legal merits. They rejected a blanket ruling that police testimony on the reasonableness of their actions was all that was required to adjudicate a case and find for the police officers.

In the United States, police are trained to kill, not to wound or to stop suspects. They also have a history of acting on their own racial biases and fears. Since January 2015, on-duty police officers in the United States have shot and killed 175 young Black men between the ages of 18 to 29. Twenty-four of these young Black men were unarmed. Black men are six percent of the population of the United States, but they were forty percent of the unarmed people shot and killed by police in 2015.

When considering the impact of the Supreme Court decision in Graham v. Connor we should not just look at the number of victims of police violence.. We need to see victims as people. Some of the youngest Black men killed by police since August 2014 are named here.

John Crawford, 22, was killed on August 5, 2014 by a police officer at a Walmart in Beavercreek, Ohio. Crawford was unarmed.

Michael Brown, 18, was killed by a Ferguson, Missouri police officer on August 9, 2014. Brown was unarmed. Brown's death precipitated the Black Lives Matter movement.

Ezell Ford, 25, was shot three times on August 11, 2014 by a police officer in Florence, California. Ford was unarmed.

Laquan McDonald, 17, was shot by Chicago police 14 times. McDonald was carrying a knife but made no effort to attack police officers. The incident was captured on video.

Akai Gurley, 28, was killed on November 20, 2014 by a police officer in Brooklyn, New York. Gurley was unarmed.

Tamir Rice, 12, was killed by a Cleveland, Ohio police officer on November 22, 2014. Rice was unarmed.

Tony Robinson, 19, was shot and killed by a Madison, Wisconsin police officer on March 6, 2015. Robinson was unarmed.

Freddie Gray, 25, died in April 2015 of a spinal cord injury sustained while in the custody of Baltimore, Maryland police. Police claimed he possessed a knife.

Quintonio LeGrier, 19, was killed by Chicago police on December 26, 2015. Police claimed he had a baseball bat. His parents charge that his murder was a hate crime.

Isaiah Core, 20, was killed by a police officer in Shelby County, Alabama on June 21, 2016. Core was unarmed.

Deravis Caine Rogers, 22, was killed by a police officer in Atlanta, Georgia on June 22, 2016. Rogers was unarmed.

Dalvin Hollins, 19, was killed by a police officer in Tempe, Arizona on July 27, 2016. Hollins was unarmed.

Paul O'Neal was killed by Chicago police and died on July 28, 2016. O'Neal died after being shot in the back. He was unarmed.

None of the Supreme Court Justices in Graham v. Connor referred to the race of the defendant or of the police officers in their written opinions. They were looking for a race-neutral "objective standard" to evaluate police behavior and decide cases. But the United States is not a race neutral society.

In their concluding statements it is as if the Supreme Court Justices had never heard of the Brown v. Topeka, Kansas Board of Education decision where testimony on the impact of racism was a deciding factor in the case.

But at least these three Justices believed that Black testimony, not just police justifications based on fear of Black men, mattered. Unfortunately, a majority of the United States Supreme Court did not.

Supreme Court Justices are nominated by the president. Currently there is one vacancy. Of the eight sitting Justices, three are at least 78, which means there will probably be more vacancies during the next president's term. The powerful role played by the Supreme Court in determining whose life matters, who gets to vote, and the president's role in selecting Justices, is a major issue in the 2016 presidential election, and a major reason the American people cannot afford to have Donald Trump elected president.

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