On the Basis of Race? Making Sense of the Noor Verdict

Could a reasonable jury based on the facts have concluded that former Minneapolis Police Officer
Mohamed Noor was guilty of  a third-degree murder  and second-degree  manslaughter, or can the verdicts only be explained on the basis of race?  This is the question still being debated more than a week after a jury rendered its verdict. The question of how race factored into this decision or, more structurally, a variety of actions surrounding the Minneapolis police department and government make it difficult to render a clean answer.  However, to many, even if facially neutral, it is hard to account for what has happened unless race is considered.

As many who study policing can attest, the law favors them when it comes to the use of force.  Constitutionally, the standard of “objective reasonableness” in terms of whether an officer feared for his life or that of others is a high bar to overcome to find  police criminally liable for use of force.  Jurors are loath to second-guess police use of force, and often the victim of the force is someone accused or guilty of a crime.  A racially neutral argument is that few police are found guilty of use of excessive force is that the laws favors them and they used force appropriately.

A less than racially-neutral argument asserts that the reason why so few officers are charged and found guilty is because of race.  It is both the race of the officer (generally white) and the race of the victim (generally a person of color).  The racism is not necessarily individual and intentional, but it could also be institutional or societal. By that, the racism is not explicit or conscious, but woven into the fabric of our institutions, law, and society. Use of force by white police officers against people of color tells us something about whose lives matter in our society.

The Mohamad Noor trial was complicated. Three charges were brought against him, with convictions on two of them for third-degree murder  and second-degree  manslaughter. According to the judge’s instructions, a jury could find Noor guilty of third-degree murder if it concluded that
Noor caused (Ruszczyk’s) Damond’s death “by perpetuating an act eminently dangerous to others and evincing a depraved mind” without regard for life but also without intent to kill and was committed in a “reckless or wanton” manner understanding that someone may be killed.

For a second-degree manslaughter conviction, jurors needed to conclude that Noor demonstrated “culpable negligence,” that he was reckless, and created an “unreasonable risk” and knowingly took the chance of causing a death or great bodily harm.

Could a reasonable jury have concluded the facts supported these charges?  Perhaps so and from a racially-neutral perspective, the evidence was significant to overcome the high constitutional bar.

But too many other factors create problems for this case, making it look like the prosecution, conviction, and City reaction were all on the basis of race.  This is the first conviction of an officer for murder in Hennepin County if not Minnesota.  Contrary to other recent high profile cases such as the trial of Jeronimo Yanez (a Latino police officer) who was not convicted in the shooting of Philando Castile (an African-American), this was a person of color charged and convicted of killing a white female.

Second, the City of Minneapolis quickly settled the civil suit against them for a record $20,000,000 payout.  But on same day the Minneapolis City Council rejected settling a far less than rumored $100,000 amount arising out of the shooting of Jamar Clark (African-American) by a white police officer in 2015.  This action led federal judge Michael Davis to order the City to court to explain their behavior.  Third, after the Noor verdict, Minneapolis police officials called for a re-examination of their procedures.

It is possible all of the above could be explained neutrally and not on the basis of race. But for many, especially in the Somali community, while similar reactions or responses did not occur when it involved white officers and persons of color as victims.  Over the years there have been many allegations of police brutality but little call for reform until now.  Perhaps this is the privilege of being white and why black lives appear not to matter.

The Mohamad Noor Trial and Police Use of Force–What the Law Says

As the trial of Minneapolis police officer Mohamad Noor for alleged murder and manslaughter of

Justine Ruszczyk begins on April 1, there will be a lot of people who have already made their decisions regarding his guilt or innocence. Even once the verdict is in there will be second guessing, even though except for the jury, none of us will have full access to all the evidence.  This is especially true in light of the presiding judge’s decision to limit public viewing of some of the more graphic material.

The Noor trial is unusual in many ways.  Rarely are officers charged with murder for use of force in line of duty.   Race is unfortunately almost always a factor in police shootings, but generally it is a white officer accused of using excessive force against a person of color.  Here we see a reversal of race, leaving some to argue that the charging of the officer is about this, or Noor’s religion.  Hopefully race, religion, or prejudice will not be factors in this trial and that instead the verdict is rendered on the basis of the facts and the law.  The prosecution will have to prove beyond a reasonable doubt that Noor committed murder or manslaughter, but in doing that it will also have to address the legal protections that allow police to use force as an affirmative defense.

So what is the law on the police use of force?

 Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it's tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar

When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen's interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.
 In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight (Use of force has to be “objectively reasonable”).  Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force.  Charge law enforcement officials with use of force–criminally or civilly–and these cases along with state law provide protection to use such tactics to enforce the law.

 Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

As the Noor trial progresses, this law on police use of force should be kept in mind.

PS:  For seven years I taught police liability in a criminal justice program.