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Opinion A 1989 Supreme Court ruling is unintentionally providing cover for police brutality

Protesters against police brutality march in Washington on Saturday. (Astrid Riecken/For The Washington Post)

How different history might have been if a police bodycam or bystander’s cellphone had recorded the events of Nov. 12, 1984, outside a convenience store on West Boulevard in Charlotte.

At that time and place, Dethorne Graham, a diabetic African American man who worked repairing roads for the state, experienced an insulin reaction and rushed into the shop to get orange juice — then rushed back out when he saw the line at the cash register was too long.

He and a friend drove off, followed by a police patrol car. The officer inside, M.S. Connor, thought Graham’s hasty in-and-out was the behavior of a shoplifter.

Moments later, Graham and his companion had been pulled over. When Graham began behaving erratically because of illness, Connor and four other officers handcuffed him and shoved him into their car, as a crowd of onlookers gathered. The police cursed Graham and accused him of faking illness — until realizing their mistake and taking him home. With injuries including a broken foot, Graham sued the officers in federal court.

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By 1989, Graham v. Connor had reached the Supreme Court — where the court’s ruling would establish legal standards for police brutality lawsuits that reverberate today.

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Every police use of force since reflects law enforcement’s absorption of constitutional lessons the justices drew from the Charlotte police’s violent treatment of an innocent, desperately ill man. Training for police officers across the country — probably including Derek Chauvin of Minneapolis — teaches they can’t be sued if they behave in accordance with the holding of Graham v. Connor.

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That holding, in an opinion written by Chief Justice William H. Rehnquist, is that courts should evaluate use of force under the Fourth Amendment, which governs “seizures” — not under the expansive “substantive due process” doctrine underlying liberal rulings such as Roe v. Wade and, later, Obergefell v. Hodges, the 2015 same-sex marriage case.

Courts should determine not whether the officer acted with malicious intent, as previous legal doctrine from lower courts had suggested, but whether he behaved “reasonably,” under the circumstances, Rehnquist wrote.

“Reasonable,” in turn, would not be determined in hindsight, or relative to a reasonable civilian’s view, but from the point of view “of a reasonable officer on the scene,” the chief justice said. Courts must bear in mind the cop-on-the-beat’s “tense, uncertain and rapidly evolving” world. As it happens, Connor was black; other officers on the scene, including one who slammed Graham’s face into his car hood, were white.

This formulation defers to law enforcement’s perspective, which is not surprising, given that President Richard M. Nixon appointed the conservative Rehnquist to the court in 1971 to undo restraints on police fashioned by the liberal Warren Court in the 1960s.

And in 1989, that was a popular objective: The violent crime rate was nearly twice what it is today, and rising. Responding like many other politicians to public anxiety, then-Sen. Joe Biden (D-Del.) faulted President George H.W. Bush’s drug-war plan because it didn’t “include enough police officers to catch the violent thugs.”

Graham’s lawyers and others thought Graham v. Connor might help plaintiffs by making it possible to prove police brutality without exploring the inherently murky issue of officer intent. On a court including liberal icons Thurgood Marshall, William J. Brennan Jr. and Harry A. Blackmun, the ruling in the case was 9 to 0, though those three expressed minor reservations in a brief concurring opinion.

However, Graham v. Connor did not prove a great help to police brutality victims, as Dethorne Graham himself quickly learned when the Supreme Court remanded his case to the district court for trial in North Carolina — and a jury found the police’s conduct reasonable. Similar results have occurred in case after case since, to the point where police now regard Graham as their legal shield.

As legal scholar Osagie K. Obasogie of the University of California at Berkeley has pointed out, Graham v. Connor’s police-friendly reasonableness test is, in practice, no less vague or manipulable than previous doctrine, while characterizing brutality claims as violations of the Fourth Amendment recasts them as one-off abuses, not systemic ones.

Reflecting such concerns after the police killing of Stephon Clark in Sacramento in 2018, a recent California law tightened deadly-force rules for that state.

Rehnquist’s opinion did not even mention race; it reported Graham’s injuries and distress, but in bare-bones language. That could not have happened if cellphone video and social media had existed in 1984.

A link between Graham v. Connor and today’s court is that Chief Justice John G. Roberts Jr. was a law clerk (and friend) both to Rehnquist and to the distinguished federal appeals court judge whose police brutality doctrine Rehnquist modified: Henry J. Friendly of New York.

Sooner or later, it will be the turn of Roberts and his colleagues to reshape constitutional law on police use of force. Technology and a mass social movement would seem to guarantee that, when the court does speak, it cannot be in the bloodless abstractions of Graham v. Connor.

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