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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, and author of The School-to- Prison Pipeline: Education, Discipline and Racialized Double Standards, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice and Considering Hate, is co-founder of CI. Criminal Injustice is published every Wednesday at 6 pm CST.
Impunity
by nancy a heitzeg
As expected, The Department of Justice will not file federal civil rights charges (under 18 U.S. Code § 242 – Deprivation of rights under color of law) in the shooting death of Jamar Clark by two Minneapolis Police officers. This follows an investigation that ran parallel to that of Hennepin County Attorney Mike Freeman, who declined to bring state charges against the officers in March. (See timeline of the case here).
U.S. Attorney Andrew Luger, leaning heavily on whether Clark was handcuffed by police before being shot and other factors, said there was “insufficient evidence” to bring a federal case. He said Clark’s family has been informed of the ruling, which was harshly criticized by the Minneapolis leader of the NAACP and firmly supported by the city’s police chief.
“I want you to understand that this is one of the highest legal standards under criminal law,” Luger told reporters at FBI offices in Brooklyn Center. “It is not enough to show the officers made a mistake, that they acted negligently, by accident or even that they exercised bad judgment to prove a crime. We would have had to show that they specifically intended to commit a crime.”
However much we might rail against this result – the legal bars for prosecution of police, either locally or federally, are almost impossibly high. No amount of railing against elected officials will solve this either — Ask Marilyn Mosby – this result is foundational to the white supremacist property function of our law. And this has been known forever:
Until relatively recently, police were free to do whatever with essentially no accountability. It must be remembered that any constraints on police activity really did not emerge ( e.g. Miranda v Arizona 1965) until the Warren Court era of the 1950 and 1960s. Still, due to a legal erosion of earlier rulings, and the ability of the police themselves to shape the narrative of citizen encounters, there are very few basic rights of citizens in the face of police power.
Two Supreme Court rulings — Tennessee v Garner (1985) and Graham v Connor (1989) – shape the legal parameters of police use of force. In Garner, the Supreme Court held the Fourth Amendment prohibits the use of deadly force unless it is necessary to prevent the escape of a fleeing felon and the officer has probable cause to believe that the suspect poses a significant threat of violence to the officer or the community. The U.S. Supreme Court ruled in Graham v. Connor that actions by law enforcement must be judged by a standard known as “objective reasonableness.” This follow up decision gives police the benefit of the doubt
At some point- and soon- one would think it is the responsibility of community “leaders” (especially those with legal knowledge) to make it plain to the people that endless demands to prosecute police will often end in disappointment. And, perhaps activist energy could be better channeled towards a vision of justice that does not rely on the punishing state.
Make no mistake — it is crucial to go to the streets, to honor the fallen, to #SayHerName, to expose the official lies, to seek some crumb of whatever our system calls “justice” for them and those who are left behind. But the politicians and the twitterati and the “reformers” and the vultures and the careerists will hijack our good intentions. Lure us into the endless rewind of hashtags, long marches to nowhere, calls to the system that kills us for “justice”, and demands for reforms – like body cams– that expand our own surveillance and the prison industrial complex with it. The non-profit industrial complex too., because their very survival depends on this: no problem can ever be solved.
They would have us do this same drill forever, while some get rich, get famous, and nothing ever changes but the Names of the Dead. And you can do so if you want too — it sometimes feels right in the moment, seems like it is better to do something. But please do so knowing that if this stops here, you are playing the rigged game they want you to — you know, the one where the house always wins. And we lose.
The killing hasn’t stopped – the latest toll from The Counted shows 418 – mostly Black and Native American – citizens killed by police in 2016 so far. And it won’t stop – certainly not this way. In the current toxic political climate of provocation and promises of more repression — from all quarters – it will perhaps worsen. And worsen as citizens have shrinking recourse amidst police protections in hate crime statues, body cameras turned against us, and #BLM activists are convicted of felony lynching..
#BlueLivesHaveAlwaysMatteredMore.
I am sorry there was no Justice for you Jamar Clark, In either life or death.
And I won’t stop saying this: Someday.
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