At Slate, Leon Neyfakh looks at why the jury in the first Freddie Gray trial may have deadlocked on the charges against Officer William Porter:

The judge overseeing the trial told jurors on Monday that in order to find Porter guilty of involuntary manslaughter, the most serious of the four crimes Porter was charged with, they would have to determine that the officer’s conduct on the day Freddie Gray was fatally injured reflected a “reckless or wanton disregard for human life,” and was a “gross departure” from what a “reasonable police officer” would have done in a similar situation.
But what exactly is a “reasonable police officer”? And how is the jury supposed to know how he or she might behave under hypothetical circumstances?

Depending on how you view police culture, the “reasonable police officer” standard could be quite a bit lower than the “reasonable person” standard.

The prosecution stressed the police department’s clear and well-publicized rules, laid out in official emails and training booklets, on when to call for medical attention and when to use seatbelts on detainees. A reasonable police officer would have followed those rules, the prosecution argued, and the fact that Porter didn’t do so characterized him as a callous and careless officer. He acted unreasonably, in other words, by flouting the rules set forth by his department.
Lawyers and witnesses for the defense had a different message for the jury: Official department policy doesn’t matter in Baltimore, they suggested, because no one at BPD really knows it by heart or follows it to the letter. Witnesses—including several current BPD officers—testified that a number of rules that exist on paper are, in practice, routinely ignored in the department. Much more important than official rules, according to captain Justin Reynolds, is common sense, which “prevails over everything else” in the BPD, he said—including general orders that it doesn’t always make sense to follow. Mark Gladhill, one of Porter’s fellow officers, testified that the seatbelt rule had traditionally been one of these formal directives that weren’t followed. Having participated in some 75 arrests in his time on the force, Gladhill said, he couldn’t remember once seeing a detainee buckled while being transported in a police van.

There is a very obvious problem with this line of thought. An acquittal on these grounds basically tells cops that they can ignore the rules, so long as everyone else is ignoring them. There’s a reason why vice cops — and drug cops in particular — are especially prone to corruption: They’re permitted to violate the very laws they’re paid to enforce. It isn’t difficult to see how that can foster an attitude that laws and rules are negligible. Imagine now if the courts moved to a position where all rules are negligible, including those that govern the use of force.


But there’s also a much more pernicious possible consequence if this sort of defense becomes successful. In March, I explained how a police shooting that was legally justified or within a police agency’s policy and guidelines could still have been avoidable, tragic, and the sort of thing we want to prevent. On the legal side, we need to understand that the Supreme Court doesn’t determine police policies and guidelines, it only sets limits on what the police can do. If the political will were there, any state legislature in the country could pass a law putting more stringent restrictions on the use of lethal force by law enforcement than the Supreme Court laid out in Graham v. Connor. Second, if we’re morally outraged by a police shooting that was found to have fallen within the policies and procedures of the officer’s employing police agency, then we can pressure the agency (or the elected officials who oversee it) to change that policy.

Both approaches present enormous political challenges. And neither approach addresses the additional problem of prosecutors, internal affairs departments, arbitrators, judges, or juries who might acquit an officer even when he was clearly in violation of the law or of department policy.

But this is an entirely new challenge, and one that may not have a solution. The Supreme Court has long been deferential to police officers, refusing to second guess their motives, and in many contexts giving them passes for “honest mistakes.” The “reasonable police officer” standard could be interpreted in a number of ways. At least in theory, you could argue that as public servants provided with training, police officers should exercise more caution before using force than a reasonable person who isn’t a cop.


“Reasonable” isn’t the same thing as “typical.” Ideally, a “reasonable police officer” standard doesn’t ask jurors to pretend that they’re cops, but evolves to establish concrete, enduring limits to lethal force that both allow police to protect themselves and the public without needlessly taking lives and infringing on constitutional rights. That is, the standard should be what juries think a reasonable police officer should be. The defense here is basically arguing that there are shifting, agency-specific, entirely subjective norms and practices within policing that supersede black-letter guidelines — that the reasonable in the reasonable police officer standard should be defined by the culture of policing — even a really localized culture — and not by the rest of us. It’s asking that juries assume “typical” and “reason” have the same definition.

This is a really dangerous idea. It’s basically an invitation to let policing be governed by and ultimately only accountable to cop culture.  It risks giving destructive policing traditions like the “blue wall of silence” or “street justice” the force of law. Worse, it basically puts police officers above the law — or at least more above the law than they already are.

As Neyfakh points out, there were other problems with the case against Officer Porter, who may be less culpable for Brown’s death than some of the other officers facing charges. But the defense’s eagerness to emphasize this argument suggests that they think it’s a winner. If they’re right, that’s a huge problem.

Accountability shouldn’t be the only tool for changing the more troubling aspects of police culture, but it’s an important one. To allow the very culture that needs reform to determine when  an officer should or shouldn’t be held accountable is a pretty good way of killing any reform.