The guilty verdict found in former police officer Derek Chauvin’s trial marks only the second murder conviction of a Minnesota officer in the state’s over 150-year history, and the first time a white officer has been found guilty of killing an African American. That’s in spite of the fact that there have been 210 police-involved deaths in the state since 2000, almost a third of which had Black male victims. The dead include names forever etched into our collective consciousness: George Floyd, Daunte Wright, Philando Castile.
Law enforcement officers are afforded various systemic protections along with serious responsibilities. But following the police reform and abolition movement of last summer, we must keep asking the question: Have we made law enforcement untouchable in the United States?
Seven in ten Black Americans report experiencing police misconduct or discrimination in their lifetime, and, of those seven, nearly half believe their lives to be in danger. When my parents sat me down after Trayvon Martin’s death, just before my ninth birthday, our conversation marked the beginning of my double consciousness. I became hyper-aware of my Blackness around white officers, meticulously tracking my every move when interacting with police for fear that, like many who look like me, one wrong move would result in my death.
But a sort of double consciousness also exists for police officers: an understanding that while they believe themselves to be one person, their uniform may portray them as someone entirely different. Every initial contact, traffic stop, search, detainment, or arrest comes with a high risk of death or injury to an officer. Police officers do too much for the recognition and support they receive. In addition to enforcing the law, we expect officers to be first responders to medical emergencies, diffusers of domestic violence, counselors in mental health crises, and so much more. The truth is, we make police responsible for a lot more than just patrolling their beat; relying on them to answer all kinds of service calls and keep us safe every day.
But while there is a lot to be said about the individual officers who commit themselves to the line of duty, we can and must be critical of the institution of policing in its current state.
The depth of our ignorance toward American police makes having a conversation on police accountability extremely difficult. Individual police departments do not keep many records or report them to groups like the FBI. But from the information we do have, we know police officers are rarely held to account for their actions. There are about 1,000 reported police shootings that result in the death of a suspect every year, and the prosecution rate of those officers is less than two percent. Of the two percent charged, only a fraction get convicted, often on lesser charges.
Law enforcement officers should understand that with every action they take, they must answer to a higher authority—but police discretion, which gives officers the freedom to decide how to enforce the law in each particular situation, may blur the line between unlawful domineering and improper conduct, making it difficult to penalize malpractice.
For instance, when making an arrest, police need to meet a high legal standard known as “probable cause,” which allows little room for discretion. But when making a stop, officers only need a more loosely defined standard known as “reasonable suspicion,” which relies on increased police discretion because of its ambiguity. Without the same guardrails, police discretion can open the floodgates for bad police practices like stop and frisk, racial profiling, and selective law enforcement.
While the decentralized nature of law enforcement means certain practices vary depending on the municipality, with too much police discretion, each officer is like a new jurisdiction. Without one standard of law enforcement, you could have a wide variety of experiences depending on what officer you encounter. Officer A may pull you over and throw the book at you, while Officer B may let you off with a warning. This lack of standardization can be useful if you receive preferential treatment. But for many, it makes police encounters a terrifying experience.
But police discretion does not just result in inconvenient stops. For people of color, it often leads to abuse and major violations of civil rights, as was the case of Rodney King and four LAPD officers, who beat King mercilessly with batons fifty six-times for a later-dropped charge of felony evading. Those officers were acquitted in part because the jury felt they had the right to exercise the force used on King because of their discretionary powers. This rationale has been used to justify police violence too often in the United States—but it is not nearly as frustrating as the get-out-of-jail-free card given to officers known as qualified immunity.
When an officer commits a crime, the question is less a matter of guilt or innocence but more a matter of if they have committed the crime in a way that has never been tried before. In Pierson v. Ray, the Supreme Court decided that for public servants like police officers to do their jobs effectively, they require a shield from liability to protect them from constant lawsuits from citizens, unless their actions are clearly established as wrong. The Court essentially argued that officers cannot do their jobs effectively if they are risking legal liability constantly, while they can still be charged for the most egregious acts of incompetence and violations of the law.
However, deciding when police misconduct falls outside of immunity leads to a judicial nitpicking that allows officers to act as though they are above the law, with their badges becoming shields from responsibility and accountability rather than symbols of service and sacrifice. If my life were being threatened by a criminal suspect and an officer had to act, I want the officer to be less concerned with the legal ramifications of their response than with doing whatever they could do to save my life, and I certainly do not want officers unfairly punished for honest mistakes or choices made according to ambiguous laws.
However, under qualified immunity, police can evade consequences for civil rights violations with just the slightest detail. That is how an officer could get away with kicking a citizen for no reason, despite knowing that hitting a citizen with a baton for no reason is wrong, as established by Outlaw v. Hartford; punching a citizen for no reason is wrong, as established by Cowart v. Erwin; and tasing a citizen for no reason is wrong, as established by Newman v. Guedry. We gather that assaulting a citizen for no reason is wrong, but if no one has ever specifically litigated kicking, the officer is protected. The next officer who decides to assault a citizen for no reason now has to find a new way to do it or face the legal consequences.
I have not begun to scratch the surface of the protections and privileges afforded to police officers in the United States — stretching from union contracts to internal investigations to jural bias and more. The combination of police enforcing the law as they please and the extremely limited liability of individual officers for unlawful acts is dangerous. It also challenges the notion that the issues we see in policing are only a result of a few ‘bad apples.’ The problem lies not with individual officers but with the institution and culture of policing, which empowers and protects rather than stops and disciples said bad apples.
Our criminal justice system was intended to be an extension of our democracy. James Madison wrote, “The accumulation of all powers…in the same hands, whether of one, a few, or many…may justly be pronounced the very definition of tyranny.” Today, police hold too much power with disturbingly little accountability. We should hold officers to the highest standards of our democracy: establishing a similar system of checks and balances that prevent tyranny from our electeds to our police departments.