Florida’s infamous “stand your ground” law was once again in the national news in the wake of the July 2018 shooting of Markeis McGlockton. Michael Drejka shot the unarmed father of three following a dispute over a parking spot outside a Florida convenience store. Drejka invoked the magic words, insisting that he “feared for his life” and thereby activating a “stand your ground” defense. Only after a visible public outcry did the Pinellas County Sheriff’s Office finally arrest Drejka.
While Drejka awaits trial for manslaughter, Florida has dug its heels in on defending its “stand your ground” law, which allows one to defend oneself or others against actual or perceived threats even when retreat is possible. The Florida Supreme Court recently ruled that the law, which effectively acts as a shield against criminal prosecution, applies to police officers as it would anyone else. The potential implications of the decision, which marks the first time any where in the United States that police officers have been brought explicitly under the aegis of a “stand your ground” law, are profound. Will the incidence of officer-inflicted violence increase with this new layer of impunity? Will the approximately twenty-five states with laws similar to “stand your ground” laws follow suit?
One thing is for certain: That the Florida Supreme Court chose to explicitly extend “stand your ground” protection to police officers will make it nearly impossible to prosecute for acts of alleged police brutality in Florida. By setting a high bar to conviction, these laws immunize police officers from punishment for their alleged brutality.
The acquittal of Officer Betty Shelby for manslaughter in May 2017 by the Tulsa County District Court is a testament to the strength of the “stand your ground” immunity offered by these laws.
Like numerous police officers before her, Shelby claimed her interaction with Terrence Crutcher, a Black motorist, made her fear for her life. She insisted that she only shot and killed Crutcher in order to defend herself from the weapon she believed that he was attempting to reach.
Video evidence presents a different story. It shows that Crutcher’s hands were above his head at the time he was shot by Shelby.
As has now become the tradition when state authorities disappoint, racial justice activists, advocates for police accountability, and concerned citizens alike turned to the federal government for its response. The Department of Justice answered. It declined to bring federal civil rights charges against Shelby, citing insufficient evidence to show that her shooting of Crutcher was “objectively unreasonable.”
The term “objectively unreasonable” comes from the 1989 Supreme Court decision, Graham v. Connor, in which the Supreme Court expanded the ability of police officers to use force. First, it offered officers wide latitude in the use of force, conceding that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat.” Second, and more importantly, the Supreme Court determined that in clarifying reasonable force, the standard of what is objectively reasonable is from the officer’s perspective, not from the “20/20 vision of hindsight.”
Graham defers to police officers, but it is just the tip of the iceberg in immunizing police officers.
Years of the development of common and statutory law have created a legal apparatus that makes it next to impossible for victims of police brutality to obtain redress, even at the federal level. To secure a criminal conviction under 18 U.S.C. §242, it must be shown beyond a reasonable doubt that: “(1) the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law.”
Yet time and time again, the Department of Justice declines to even bring charges against police officers. Its unwillingness to bring charges against Darren Wilson, the police officer who killed Michael Brown, was perhaps one of the most notorious instances of such refusal. The barrier to prosecuting Wilson, as with so many other police officers charged with having used excessive force, was proving that Wilson “willfully” violated Brown’s civil rights. According to University of Virginia law professor Rachel Harmon in an interview with The Washington Post, when an officer makes a credible self-defense claim, his actions cannot be willful because the requisite intent to deprive the other person of their rights does not exist.
What evidence can a victim present to contradict an officer’s claim that self-defense was necessary? How does a victim counter what an officer claims to have been his subjective belief? How successful is a victim likely to be in doing so when the Supreme Court has placed such a high premium on the officer’s subjective belief at the expense of the actual facts of the matter? When an officer invokes self-defense, 18 U.S.C. §242 effectively pits his word against that of his victim. And the Supreme Court, by granting that some use of force is permissible and regarding the officer’s perceptions as the controlling factor in determining the reasonableness of the force used in the course of the confrontation, has all but ensured that the officer will win every time.
Last year, the Supreme Court waded once again into the fight for police accountability. The Court held in Kisela v. Hughes that police officers “are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue,” deferring further to police officer discretion to use force. The decision, which dissenting Justice Sonia Sotomayor said signals to officers that “they can shoot first and think later,” adds to the body of law that shields police officers from conviction for excessive use of force.
Taken together, these laws function in the same way that “stand your ground” laws do: They empower police officers’ perceptions of imminent threats of violence. Troublingly, these perceptions are shaped by inherent biases that are often racialized. These laws treat police officers’ self-defense claims as presumptively valid. The result is that police officers who are credibly accused of using excessive force are immunized from legal scrutiny on the state and federal level.
Advocates for police accountability have tended to focus on measures such as officer use of body cameras, the implementation of more community policing, and the administration of officer sensitivity training to ensure that officers conform to basic standards of respect and regard for human life. However, these accountability measures alone are not sufficient.
After the fatal shooting of Markeis McGlockton, efforts supporting the repeal of Florida’s “stand your ground” law have gained traction. Advocates for police accountability should pursue similar efforts.
The laws that insulate police officers from accountability must be challenged and changed.