Pandemics are often thought to be unforeseeable acts of God that emerge suddenly to wreak havoc on unsuspecting populations. But that’s not how public health practitioners think about them. More often than not, pandemics have a political economy behind them, in which substandard living and working conditions connected to social inequalities produce opportunities for disease to spread unchecked. That was true for the 1918 flu pandemic that started on farms in Haskell County, Kan., and it also appears to account for the emergence of the novel coronavirus.
Those social and political contexts also help explain another pandemic — one that, like the coronavirus that still rages, is also disproportionately killing black Americans. Make no mistake: Police violence is a public health problem.
Three months into the widespread outbreak in the United States, the data on racial disparities in coronavirus infections and deaths is staggering. Majority-black counties have three times the rate of infections and nearly six times the rate of deaths as their white counterparts, according to a Washington Post analysis from April. The racial disparity in police violence is nearly as stark. In Minneapolis, where George Floyd was horrifically killed by law enforcement, police officers use force against blacks seven times more often than against whites. Studies show that black men in America are up to 3.5 times more likely than whites to be killed by law enforcement; 1 in every 1,000 black men will die at the hands of police.
Floyd’s autopsy revealed that he had tested positive for the coronavirus, though he had no symptoms and it wasn’t a factor in his death. Perhaps the most tragic similarity between these twin pandemics is that the tepid response from the federal government can be largely attributed to the fact that the same populations — poor, dispossessed minorities — disproportionately make up the dead and suffering. The government’s reaction would be dramatically different if these plagues mostly affected white middle-class populations. Black lives seem not to matter, which reveals an underlying eugenic ideology in the United States of letting disease and violence thin the herds of undesirable groups.
By now, we have a good understanding of the environmental conditions that can allow viruses to spread uncontrollably. But what explains the police violence pandemic? Much of the debate boils down to whether it stems from officers’ implicit or explicit biases. Both of these arguments acknowledge the structural and institutional nature of racism. While explicit bias suggests that police have an active disdain and disregard for black lives, implicit-bias models emphasize the ways that police are trained to automatically associate blackness with danger or criminality, leading them to unconsciously use harsher force than they would in similar situations with white people.
But whether implicit or explicit bias provides the better explanation is a distinction without much difference. Combating police violence isn’t about figuring out the motivations of individual “bad apples.” It’s about understanding how a network of government-sponsored brutality across 18,000 local, state, county and federal law enforcement agencies can, in lockstep, without any central organization, create persistent terror in black communities. To understand the conditions that give rise to appalling behavior such as the killing of George Floyd over an allegedly fake $20 bill, we have to take a close look at the conditions that signal to all police officers that they can treat black people with utter disdain and brutality, with little consequence.
Taking a public health approach to the problem points squarely at one thing: the law.
The Reconstruction-era Congress understood that local and state officials were using their authority to terrorize black communities after the Civil War. It passed the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act) to, in part, allow individual plaintiffs to sue government officials who deprived them of constitutional rights. Later codified as a federal statute, this law creates accountability by exposing police officers to civil liability — money damages — when they, for example, unlawfully beat or kill community members.
The statute largely lay dormant until the 1961 case Monroe v. Pape, which re-energized efforts to use the law to deter police violence, protect communities and hold individual officers financially responsible when they violate rights. But not long after the Supreme Court opened this small window of justice, it essentially closed the door to using civil liability as a form of police accountability by making up a new rule in 1967: qualified immunity. In short, police officers are immune from civil liability unless a plaintiff can show that the officer violated a “clearly established” law — that is, a right acknowledged in a previous case with similar underlying facts where police conduct was deemed unlawful by a court in the same jurisdiction that would, in theory, put an officer on notice that such behavior is not allowed. For example, if an officer used force in a manner that may have been excessive — perhaps a baton strike to a protester’s knee that caused substantial damage — but that had not been already judged by a federal court in the relevant jurisdiction to be illegal under the same circumstances, the officer would be immune from civil suit. Since it is rare that any two cases in the same jurisdiction share the same facts, qualified immunity has become an impossibly narrow rule that creates insurmountable barriers to justice for victims of police violence.
That’s not the Supreme Court’s only contribution to the police violence plague.
In addition to limiting the mechanisms by which victims can bring civil cases against police officers, the court has gone out of its way not to make definitive statements on what counts as an unconstitutional use of force. The one exception is the 1985 Tennessee v. Garner decision. In this case, a Memphis police officer shot and killed Edward Garner, a black 15-year-old, whom the officer knew was unarmed as he ran away after allegedly burglarizing a home. A Tennessee statute at the time allowed the use of deadly force in such a situation, but the Supreme Court held that deadly force could not be used against fleeing suspects who posed no danger.
Outside of that decision, though, the Supreme Court has deftly avoided telling police officers what they can and cannot do when they use force. A few years later, in 1989, the court further ingrained this evasion into legal precedent in Graham v. Connor. In this case, Dethorne Graham, a black man with diabetes, was beat up by a group of police officers who mistook his symptoms of low blood sugar for drunkenness. The Supreme Court used Graham’s lawsuit as an opportunity to clarify the constitutional standard for reviewing police use of force. Until then, these cases could be decided under several different legal claims. But the court ruled that all excessive-force cases should be adjudicated under the Fourth Amendment, which protects people from unlawful searches and seizures, using an “objective reasonableness” standard.
Graham and his lawyers initially thought this was a victory. The prevailing standard relied heavily on proving the subjective intent of police officers, which is difficult. Surely beating up a man just because police assumed that he was drunk would not meet this new objective standard. Yet when Graham’s case went back to the trial court under the new standard, the jury said that the officers’ treatment of Graham was “reasonable.”
That sums up the past three decades of excessive-force cases in federal courts. The Fourth Amendment standard has been used to justify even the most egregious uses of police force as “reasonable.” This is precisely because the Supreme Court has refused to define what “reasonable” means. In the midst of this ambiguity, lower federal courts often defer to local police departments’ own policies on use of force as the constitutional definition of what’s reasonable. This often means the courts let police use whatever force they say they can. When federal courts largely abdicate their responsibility to interpret the law and allow police departments to define constitutional standards, law has been turned upside down.
This is how the police violence pandemic has spread.
Between qualified immunity and Graham v. Connor, the Supreme Court has effectively made the police above the law. The result has been a decades-long spate of violence that has left broken and mutilated black bodies all over the streets of America.
Scientists are currently working hard to develop a vaccine to pull us out of the coronavirus pandemic. Is there a “vaccine” for police violence? Maybe. Rep. Justin Amash (L-Mich.) has pledged to introduce the Ending Qualified Immunity Act in Congress, and Sens. Ed Markey (D-Mass.), Cory Booker (D-N.J.) and Kamala Harris (D-Calif.) have said they will similarly introduce a resolution to end the doctrine. At the same time, the Supreme Court is now deciding whether to review several qualified-immunity cases that would give the justices the opportunity to rethink or discontinue the practice.
But not all vaccines work very well. Whether it is the coronavirus or police use of force, the underlying causes mutate and adapt to the environment, making vaccination a moving target that requires constant vigilance. Unfettered and unaccountable police power is deeply woven into the fabric of America, and it won’t go away quickly or easily. Ending police violence will require continued organizing to put new people in leadership positions who can change the way police departments operate, community oversight to hold them accountable and a new generation of judges who embrace a more faithful interpretation of the Constitution. Until then, the only treatment will be to continue to march and make our voices heard.