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The real scandal of police violence is what's legal

Mourners look on as Michael Brown's casket is removed from the church after his funeral
Mourners look on as Michael Brown's casket is removed from the church after his funeral
(Robert Cohen-Pool/Getty Images)

A grand jury has decided that Staten Island police officer Daniel Pantaleo will not face charges for killing Eric Garner, who died last July after Pantaleo placed him in a choke hold while arresting him for allegedly selling untaxed cigarettes.

For many who wanted Pantaleo to be punished for Garner's death, it's a scandal that he has gotten away with what they see as a crime. But the bigger scandal is that what he did arguably wasn't a crime at all. Our legal standards and legal system make it difficult — if not impossible — to prosecute police violence.

The legal standard for when police can use force

Ferguson riot police

Armed riot police confront protesters in Ferguson, Missouri during the protests that followed the grand jury decision on November 24. (Scott Olson/Getty Images)

It was never likely that Pantaleo would be prosecuted for choking Garner to death. The set of situations in which police officers are allowed to use force is narrow in theory but broad in application.

Police officers are not allowed to use deadly force except in a few theoretically narrow circumstances: in defense of themselves or others, or to prevent a suspect from fleeing the scene of a "dangerous felony."

That sounds quite limiting — and it would be if the danger had to actually be real or the dangerous felony had to have actually taken place. But that’s not the law. What matters, legally, is whether the officer reasonably believed that those factors were present — or can convince a jury that he did.

And that's not hard to do, because police officers are given a great deal of deference by the legal system. Juries tend to perceive police officers as credible, and so are likely to credit officers' claims that their fear was reasonable.

And race adds a thumb on the scale: Americans overestimate black people's involvement in crime, which is helpful to an officer trying to claim that he believed a black victim was a threat, as has been the case in so many high-profile police shootings.

That means that to press criminal charges in a police shooting, the prosecutor has a heavy burden to overcome. The officer is likely to claim that he believed the suspect was a threat and made a split-second decision to use force. The jury is likely to believe him, even if his decision was a bad one.

That makes it difficult for the justice system to hold police officers to account when they use force against people who didn't actually pose a threat at all. We don't know exactly how often police officers kill people who turn out to be unarmed, because there isn't any reliable data on police killings. But every Eric Garner, Michael BrownJohn Crawford, or Tamir Rice is a reminder that that happens far too often.

What that means for the rest of us: the costs of police violence

Police hands up

Armed police confront a lone protester in Ferguson Missouri on August 11. (Scott Olson/Getty Images)

It's not just Eric Garner or Michael Brown. Coupled with the legal system's deference to police, the legal standard for the use of force causes serious harm.

First, a great deal of regular life looks threatening to an officer who is primed to see danger. For instance, when John Crawford plucked an air rifle off the shelf of an Ohio Walmart on August 5, police perceived him as a threat, and killed him. And when 12-year-old Tamir Rice took a toy gun to a Cleveland playground last weekend, police determined him to be a danger, and shot him. He died the next day.

The second, more insidious problem is that the current system seems to encourage police in some departments to escalate encounters into violence instead of resolving them more peacefully. For instance, in August, a video surfaced of the St. Louis police killing Kajieme Powell, a mentally-ill man who was holding a knife. Powell was not within reach of the officers, and did not try to attack them. The police waited 23 seconds before shooting Powell multiple times.

It's difficult to watch the video and not conclude that the officers could have found a way to de-escalate the situation, and that their failure to do so cost Powell his life. But the law insulates the officers who shot Powell from the consequences of their decision.

That same pattern plays out over and over in police officers' interactions with the citizens they are supposed to protect. Instead of prioritizing de-escalation, police prioritize their own safety, even if that means escalating violence.

That attitude could be seen in the decision to have police officers roll through the streets of Ferguson in armored vehicles, and to use military-grade equipment against protesters. That heavy armor may be intended to keep officers safe, but it can have the effect of escalating or even catalyzing violence.

It's that same attitude that encourages the use of armored SWAT teams for ordinary activities like serving search or arrest warrants. The officers' tactical gear may make them feel protected, but the over-use of heavy weaponry inevitably leads to innocent people getting hurt, including very small children, and even the officers themselves.

And it's that attitude that causes police to shoot dogs during police work that takes them into family homes, leading to the unnecessary deaths of beloved furry companions.

Time for a change

LA Protesters

Demonstrators in Los Angeles protest the grand jury decision on November 24. (David McNew/Getty Images)

We can't pretend that changing this system will be be costless. If we put more restrictions on officers' ability to use force, and impose bigger penalties on them for getting it wrong, then in some cases that will probably cause officers to hesitate at the crucial moment, and the consequences of that might be very serious indeed. Current use-of-force statutes exist to address the concern that police officers who hesitate at the crucial second could be injured or killed.

But the costs of the status quo are too terrible to bear. Innocent Americans are getting killed as they shop, and play, and sleep in their homes. That is unacceptable. It's time for a change.