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It Isn’t Much to Ask That Cops Have a Higher Standard for Killing People

August 12, 2019
In The News

Stephon Clark lived and died in Sacramento. When the 22-year-old father of two was shot and killed by local cops after a foot chase in the spring of 2018, it provoked the largest national uproar over a police killing of an unarmed black man since the groundswell of protests that began with the death of Michael Brown and the Ferguson uprising five years ago this week. The Sacramento officers who took Clark’s life were not charged with any crime.

It didn’t happen in Rep. Ro Khanna’s district, but it was close enough. The Philadelphia-born Democratic Congressman representing the nearby 17th District of California recalled what he did as he tried to make sense of Clark’s death.


“It seemed just like another case of a young man’s life being taken without any rationale,” Khanna told Rolling Stone Friday in a phone interview. “And so after Stephon Clark, I had a conversation over breakfast with Reverend [Al] Sharpton. He said, ‘Look, if you really want to do something, this is what’s consequential: Change the actual standard. The ghost of Rehnquist still haunts us. Go propose federal legislation to change the standard.’”

What Sharpton was referring to was the varying measure of determining what is and what isn’t excessive force by law enforcement. The “ghost” he spoke of is the unanimous 1989 Graham v. Connor decision under then-Chief Justice William Rehnquist. That ruling ostensibly established an “objectively reasonable” standard for excessive use-of-force claims under the Fourth Amendment, which protects people against unreasonable searches and seizures. The ruling has been more elastic in practice, often allowing officers to escape legal and even departmental sanction for killings and heinous abuses.

Both Khanna and Rep. Lacy Clay of Missouri, who represents Ferguson, are now trying to create a law that actually honors the spirit of the Graham v. Connor decision: establish a national standard for the use of force by police. The PEACE Act would “change the use of force to be a last resort, rather than a first resort, and require officers to employ de-escalation techniques,” according to their joint statement.

Even just the recent history of police officers deploying violence with impunity — most recently exemplified by the lack of federal charges filed against New York City police officer Daniel Pantaleo for killing Eric Garner with a chokehold maneuver banned by the department — shows that “objective” and “reasonable” are in the eyes of the beholder. The Trump administration, naturally, has made things worse by further limiting police oversight. Legal accountability for officers was already awful before two subsequent Supreme Court decisions gave cops even more free reign. Since 2016, fatal police shootings have continued to rise each year. Khanna hopes this legislation will stem that regressive trend.

 
The proposed bill is modeled upon California’s Act to Save Lives, the “necessity” standard that passed in the state senate in July and is now on its way to Gov. Gavin Newsom for his signature. Formed over the course of six months with the help of civil rights organizations such as Sharpton’s National Action Network, the ACLU, NAACP, and the NAACP Legal Defense Fund, the federal standard would be enforced, essentially, through funding. If states want to keep receiving Department of Justice public safety funds, they would also need a comparable version of the “necessity” standard for their own local police officers.

Clay and Khanna announced the PEACE Act on Friday, on the anniversary of Brown’s death. “I think the bill would help clarify for the community as well as law enforcement what the parameters are for encountering law enforcement with the public,” Clay tells Rolling Stone. “This sets a standard that is humane, that actually protects the public as well as law enforcement. And so I think it fits the circumstances of the tragedy that happened to Mike Brown, but it also applies to circumstances all around this country when it comes to police use of force.”

Precisely what happened to Brown when he was killed remains in dispute. Two separate investigations concluded that the recent high school graduate did not have his hands up when Ferguson police officer Darren Wilson fired the fatal shots, but witness Dorian Johnson told the Washington Post last week that Brown “put his hands in the air.” However, there are past cases that Khanna pointed to that he feels that the PEACE Act would have been able to address.

“You look at Tamir Rice’s case, the boy who was shot in Ohio because he had a toy gun,” Khanna says, with sadness in his voice. He was referring to the 2014 shooting death of a 12-year-old boy at the hands of then-Cleveland police officer Timothy Loehmann. “The police officers in that case, when they were called, they went two feet away from the boy and [initiated] a confrontation. There would be totally different standards required under force being a last resort and force being necessary.”


Khanna says the same about the death of Clark, who “was shot in his grandmother’s own backyard, fiddling for a phone. In all of these cases, you would see the requirement of de-escalation techniques first. And the evidence suggests that it would actually make police safer.” 

Khanna points to Seattle. Five years after the Obama administration mandated the Seattle Police Department change its use-of-force standard to one of “necessity” in 2012, a federal monitor concluded that the department had made a dramatic turnaround — not merely decreasing its net incidents by 60 percent, but finding that it actually made life on the beat safer for cops. The report showed that “decreased use of force has not placed officers at any higher risk or made officers less able or willing to use force to defend themselves from threats or harm.” 

Forget about the false narrative that requiring officers to tone down the violence on the job would jeopardize their safety; Trump has promoted outright police violence during his presidency. So, it is doubtful that he’ll sign any bill like the PEACE Act. Though evidence is on his side, Khanna admits that the bill has a tough road ahead. “My hope is that every Democratic presidential candidate can come out in support of this new standard. That would really help the momentum to get it through the House, and [I hope] that we can get Senate leadership on board with it,” says Khanna. “But this is going to be a heavy lift to change this standard nationally.”

Still, proposing it now, on a key anniversary and during a Democratic presidential primary, may help Khanna, Clay, and the party build support for the initiative should they recapture the White House and regain the strength to push through such a bill.

For one, Clay seems to have had a fire lit under him by Brown’s death. Though there has been a relative silence surrounding police violence in recent years as compared to during the Ferguson uprising, he hopes that Brown’s life can provide similar motivation for his colleagues. 


“I would hope that people will remember that Michael Brown was somebody’s child,” Clay said. “A couple of days after he was killed by that police officer, I talked to his mom and his dad, and his mom said, ‘Look, I want the world to remember that he was my child.’ They will never be the same. Their family will never be the same, and so we have to remember that this is about remembering somebody who was, in my opinion, a martyr that changed the course and the direction of this country. And through his death, we have tried to continuously perfect our Union.”