It’s time we had the talk. No, not about police brutality -about the killing of black and brown people (men, women, and children) by those who are sworn to protect us. The proper name is extrajudicial execution.
I have mentioned this concept on radio programs, on panels, and in blogs. Each time, the response has been some variation of the question, “Are you saying police are executing black people?”
My answer? “Yes. And without due process of law.”
Police are killing unarmed black people. We have seen this with the loss of Tamir Rice, Eric Garner, Walter Scott, Michael Brown, Philando Castile, Sandra Bland, and far too many others. The fact that these unarmed people died at the hand of the police is indisputable. Therefore I find it interesting that so many people recoil at the term.
Since the facts cannot logically be disputed, I can only assume that the objection is to the word execution itself. In other words, killing black people is one thing but calling it execution is a bridge too far. Really?
I try to select my words with precision and my choice to use execution is not taken lightly. Let me explain. Killing and execution are synonymous terms. So, regardless of the word choice, the fact remains that black people are losing their lives because police are shooting them. Why then, you might ask, should we refer to it as extrajudicial execution rather than just plain old killing? The simple answer is because that is what it is. But more importantly, by definition, executions are performed exclusively by the state – killings are not.
Law enforcement officers are authorized by the “state” (whether federal, state, or local) to make arrests and to use deadly force. They are agents/employees of the state. Therefore, when an officer shoots and kills a civilian, it is not the individual officer who executes but the state in whose name and by whose authority he acts. Just as it is the state and not the individual who gives the lethal injection that carries out a death penalty. The state acts and can only act through its agents. Therefore it follows that it is the state that must be held responsible.
The legal doctrine involved here is known as respondeat superior. The term means “let the master answer”. It means the employer can be held liable for the acts (whether of commission or omission) of its employee as long as the employee is acting with the scope of his duties. The use of deadly force is within the scope of the duties of all law enforcement officers.
The United States Constitution provides that no person shall be held to answer for an infamous crime without indictment by a grand jury. And, no person may be deprived of life, liberty, or property without due process of law. Thus, a law enforcement officer who kills a person for some real or imagined crime has, in effect and
as an official arm of the state, taken the person’s life without indictment and without due process of law. A clear violation of the Fifth Amendment. The state cannot be allowed to summarily execute its citizens!
Finally, the oft-cited argument that a police officer is privileged to use lethal force if he/she feels endangered is at once insulting and indefensible. First of all, the criminal law (at the federal and state level) recognizes justification, also known as self-defense. But it is an affirmative defense that must be pleaded and proved beyond a reasonable doubt. Of course, in order to use this defense, you must be charged. The law enforcement officer is not charged if his action is seen as a good shot.
A good shoot is, in police parlance, a justified homicide. The problem with this concept is that it means an extrajudicial execution is justified and not subject to prosecution because a police officer felt threatened and based on that fear executed a civilian. It also means that the actual presence of a threat is not important. It is what the officer reasonably believes. If he believes a twelve-year-old with a toy gun on a public playground is a threat — good shoot. If a wallet was thought to be gun — good shoot. If a nicotine dispenser was thought to be a gun — good shoot. If an armed black man scares me because he looks to me like a monster — good shoot.
In 2015, police killed at least 102 unarmed black people — about two per week. Thirty-seven percent of unarmed people killed by police were African American though we are only thirteen percent of the population.
Several states have enacted stand your ground laws. These laws provide that there is no duty of retreat before using force (including lethal force) in self-defense if the person reasonably believes doing so will prevent death or great bodily harm. It is this type of law that allowed George Zimmerman to be set free after murdering Travon Martin.
So now we have a host of states where individuals are carrying guns and can use them if they feel threatened and where police can execute African Americans with impunity because they feel threatened.
The first step in addressing a problem is naming the problem. As long as society is too afraid to name the problem of the state killing unarmed black citizen, we will be unable to look the problem squarely in the eye and address it.