Image Credit: Photo by Chris Henry on Unsplash

In the wake of George Floyd’s death, caused by a police officer intentionally kneeling on his neck for nearly nine minutes, protests have erupted in the US and around the world demanding justice for Floyd and broad reforms to address racist policing. “Say their names” has become a rallying cry for the growing Black Lives Matter movement, raising awareness of Floyd, Breonna Taylor, Tamir Rice, and countless others killed by police use of lethal force, which disproportionately impacts Black people. The efforts of Black Lives Matter activists have led to some significant changes, including multiple US cities banning the use of chokeholds and announcing plans to reallocate portions of police budgets to social services. However, there is a long road ahead to dismantle systemic racism and deep-seated flaws in the criminal justice system.

Mitch Crusto, Distinguished Professor of Law at Loyola University New Orleans College of Law, has spent years researching and writing about police use of lethal force. He continues to unpack the topic in his recent paper “How Police Get Away with Murder” and forthcoming law review article “Lynched: Abolishing Police Executions.” In the interview below, Crusto discusses the many obstacles to police reform in the current US legal system and the transformational change he believes is needed to both save lives and foster community policing.

Q&A with Mitch Crusto

Your forthcoming article analyzes what you call the “Black Lives Conundrum.” Can you unpack that concept?

MC: Yes. I believe the general public, as well as many Black Lives Matter advocates, are unaware of the many legal obstacles that make it nearly impossible to successfully prosecute a police officer for killing a person. This is particularly true for innocent African-American males. The Conundrum is that, despite unprecedented national protest and demands for equal justice, the reality is a suspect police officer will likely be acquitted — think Rodney King’s case.

In your paper, “How Police Get Away with Murder,” you cite the Danziger Bridge case as a rare example of a successful prosecution of police officers for the wrongful use of lethal force. Can you briefly overview what makes that case the exception?

MC: Just after Hurricane Katrina flooded New Orleans, several police officers shot people on the Danziger Bridge. The officers claimed they were returning hostile fire when, in fact, they were not. To cover their tracks, the police officers planted a gun on one of the innocent people on the bridge and falsely and wrongfully arrested him. After years of covering up the facts, some of the police officers came clean, following a federal investigation.

What makes this case exceptional was the federal investigation, the extensive evidence of the unjustified shootings, and the lying and covering up of the truth. The lesson is whenever there is an incident of police use of lethal force, a thorough, and perhaps, a federal investigation needs to occur. And, if the facts support a finding of an unjustified killing, there should be a prosecution.

How do you think police officers’ broad qualified immunity against personal liability while policing should be addressed to prevent abuse?

MC: Qualified immunity is a double-edged sword. It provides police officers and other government officials the freedom to do their jobs without personal liability for harms they cause in doing so. At the same time, it provides a broad shield to those same police officers to operate in a careless and sometimes reckless manner. In my opinion, we don’t have to change qualified immunity to reduce the excessive use of lethal force. I think we should change the police policies on the use of lethal force, broadly defined to include chokeholds. I think we should abolish the use of lethal force altogether, as I contend that such lethal force violates the constitutional rights of the victims and would-be victims. If an officer violates that ban, then qualified immunity should not apply, and that rogue officer should be personally criminally liable.

Some argue that police should be required to buy liability insurance to increase out-of-pocket costs for officers that engage in high-risk conduct and make repeat offenders uninsurable. What are your thoughts on this?

MC: That’s an interesting question. Currently, the municipality or hiring authority, via their insurers, are picking up large tabs of civil payments in wrongful death settlements. I would amend the police union contracts to have the police unions foot the cost of paying for police liability insurance. Ultimately, the police officers will pay through a slight increase in dues. The problem with insurance is that it shifts accountability and may not serve as a prophylactic against the overuse of lethal force.

What does it take to get an independent investigation of police use of lethal force? Should all such cases be reviewed independently to prevent police coverups, and is this feasible?

MC: That’s a tough one. The normal procedure to assess whether the use of legal force was unjustified or excessive is an internal investigation. There is conscious and unconscious bias operating there. Further, as in the Danziger Bridge case, the police who committed the killings could facilitate a coverup, including the destruction of evidence and the like. I recommend an independent investigation, perhaps at the federal level, of every incident when a person dies during or following an encounter of any kind with the police, including during stops, arrests, or while in custody.

You’ve noted that there are many potential conflicts of interest in cases surrounding police use of lethal force, including the potential for coverups, local prosecutor relationships with the police, and pro-police jurors. Have any of these conflicts of interest been addressed up to this point?

MC: Hardly. The Obama Administration’s Justice Department was working towards addressing some of these reforms. Most, if not all, of these reforms were abandoned by the Trump Administration. Ultimately, I think that real change will require a complete overhaul of the policing system. I don’t believe that we need to completely defund the police, but we need to reimagine the policing system. I think that, like many of our institutions, racism is interwoven into policing and results in intended and unintended consequences. Reform can happen from the top down or the bottom up, but it needs to happen now.

In your paper “How Police Get Away with Murder,” you write, “we have evolved into a police state.” How do you think we got to this point?

MC: I believe our police state results from three causes. First, we have a history of the use of police to patrol and suppress perceived undesirables, particularly African Americans, and to support white supremacy. Second, the War on Drugs, especially the criminalization of marijuana, has made every person a suspect, subject to police intrusion into personal space. And third, more recently, the War on Terror has provided the Government the justification to aggressively investigate and arrest anyone who might be an enemy of the State.

MC: Certainly, there are several ways that I believe are constitutionally sound and mandated. These are mutually exclusive. Each would provide relief.

  1. Recognize the right to life for all people, against governmental infringement, under the 5th and 14th Amendments.
  2. Use 5th and 14th Amendment jurisprudence and not 4th Amendment search and seizure jurisprudence to assess whether the use of lethal force was justified.
  3. Abolish the use of lethal force as it is an unconstitutional violation of the “Cruel and Unusual Punishment Clause” of the Eighth Amendment.
  4. Revisit the Screws v. United States decision to allow criminal liability for negligent use of lethal force, regardless of the officer’s intent.
  5. Revisit the “objective reasonableness” standard used to assess police criminal liability under Graham v. Connor, by removing the criteria of what the police officer might have believed at the time of the use of lethal force. It should be replaced with a ban on the use of lethal force. In that case, if a police officer used lethal force, it would have to be in self-defense, subject to State laws on the subject.
  6. The Federal Government should follow its constitutional mandate under the 14th Amendment and Civil Rights Statutes to investigate every person’s death that is in any way related to law enforcement.

Ultimately, these changes would save Black lives from police use of lethal force and would free police officers from the policies and training that encourages such inhumane executions, which I contend are a modern-day form of lynching.