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.

A Tale of Two Cities: Reflections on the Minneapolis and St. Paul Mayoral Races

Minneapolis and St Paul are two cities.  No, not two separate cities, but two cities each within
themselves. Both are shining cities on the hill for those who are white, affluent, and live in the right neighborhood.  They are cities of concentrated poverty, racial disparities, and lack of opportunity for  people of color, the poor, and those who live in the wrong neighborhoods.  The defining issue for the 2017 Minneapolis and St Paul mayoral elections ought to be about rectifying the difference between the two cities–providing justice to all to prevent the conditions that led to the deaths of   Jamar Clark and Philando Castile, but so far that has not been the case.
Minneapolis and St. Paul are great cities with a wonderful quality of life, for some.  But both are  hugely segregated by race and income.  It was that way nearly 20 years ago when I worked for the University of Minnesota’s Institute on Race and Poverty and we documented that segregation.  Over a generation little progress has been made. They remain cities with  neighborhoods torn by concentrated poverty, race, crime, and disparate educational outcomes.  They are cities where wealth is concentrated in the urban core and in a few neighborhoods, leaving many others behind.  Mayor Hodges, and before her R.T. Rybek and before him Sharon Sayles Belton, all promised to put money into the neighborhoods, to delivery economic development for the least advantaged, and either failed or ensnared in the demands of downtown urban development.  The same is true for Chris Coleman and before him Randy Kelly and Norm Coleman.
This year, largely  the candidates are failing to talk about the other cities within Minneapolis and st Paul that have been left behind.  The candidates do not seem to run on the quality of city services such as making sure that the streets are safe,  plowed, and pot hole free, that the garbage is picked up, housing codes are enforced, or the police respond when called.   Instead they are running against Donald Trump, talking about bringing more events such as the Super Bowl or other sports events to their city, or being the greenest city in America.  All lofty goals but not what cities are about.  Or in the alternative, when they do discuss the core issues of poverty, homelessness, or city services, they fail to mention something simply–how to pay for it.  Minneapolis and St Paul have finite resources, property taxes are going up rapidly, and the traditional middle class feel squeezed that they cannot afford to stay in their homes anymore, or that they cannot buy or rent a place in the city.  Raising taxes is not the solution.
The issue for Minneapolis and St Paul is social and economic equity. Fundamentally, the defining issue for the two cities is creating economic opportunity for all.  It is making it possible for individuals, regardless of race or neighborhood, to have a decent job, a choice of where to live, a voice in where to send their children to school.  The role of the mayor is steering investment, encouraging economic development, making it possible for people to create their own businesses.  Expand the economic base for all, especially those who are left out already, and that is they way to generate the resources both to finance the city and help those who have been left behind.
Such a vision for the two cities requires several things.  Neighborhoods need to be diversified.  Concentrated poverty neighborhoods are no good for anyone.  There needs to be a mix of people, incomes, and structures in every neighborhood.  Rethinking the two cities’ comprehensive plans is one step.  Allowing in some places for more intensified or mixed development, to allow some people to  invest in their own neighborhoods will help.  Yet private investors and banks will not act on their own to finance this.  Both cities need to think of their own investments in terms of streets, sidewalks, and  other services such as code enforcement.  The cities can help foster the conditions for economic development in their various neighborhoods, but they can also do things such as provide micro-financing to help some communities and guarantee loans in some situations.  Make neighborhoods attractive for all to live and invest it.  Deconcentrating poverty is one step in making neighborhoods more opportunity-based.  Thus, both place-based and mobility strategies are needed.
But that is not enough.  Businesses or people invest where there are skilled workers.  Strategies to attract and remain college graduates and provide real training for those lacking skills too are important.  Better partnerships among the local colleges, employers, and workers to train and connect businesses to people should be on any mayoral candidate’s agenda.    Quality services, the amenities of parks, libraries, and the arts are too what candidates should be discussing.  So too should they be talking about schools.  No, mayors cannot improve schools themselves, that is not their job.  But they can provide the conditions that make it possible for children safely to go to schools, or to live in neighborhoods that support learning though the maintenance of libraries and communities centers, for example.
Finally, both cities must directly confront the discrimination that exists within their borders.  More aggressive human rights enforcement is one answer.  The tragedy of the deaths Minneapolis  and St. Paul residents Jamar Clark and Philando Castile is a story of both racism and failed economic opportunity.
I certainly do not pretend to have all the answers. Yes, I have worked as a city director of code enforcement, zoning, and planning, been housing and economic planner, consulted and trained many local governments, and taught and researched planning and urban politics and local economic development for years.  None of that means I have all the answers.  But what I do know is that a city is its people, that all neighborhoods should have opportunity, and that what the mayoral candidates in both Minneapolis and St. Paul should be talking about is how to grow the economic opportunity  for all and how they plan to pay for the visions they have.

Prosecuting Police Misconduct--Why it will be hard to get a conviction in the Castile case

Note:  For seven years I taught criminal justice classes, including a course that included examination of police  civil and criminal liability.  I also discuss police use of force in the second edition of my civil rights/liberties case book to be published by West Academic this summer.

On May 30, jury selection in the case of police officer Jeronimo Yanez begins.  He is charged with the shooting of Philando Castile.  Many think it will be a slam dunk to get a conviction–after all, there is a tape of the incident that appears to show an unwarranted excessive use of force.  Yet the odds are that it will be hard to win this case.

Why? Part of the cause is that laws on the use of force favor the police, making it difficult to win cases.

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 or accused or criminal acts.

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.

And it gets worse. 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.

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.   Much of this may not apply in the  Castile case.  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.

While the above framework applies to civil responsibility, it overshadows criminal liability for police conduct.  Effectively a prosecutor will need to demonstrate that a police officer–here Officer Yanez–acted outside the scope of his authority when he used force.  Then the prosecutor will need to prove the elements of the crime second-degree manslaughter and two felony-level counts of dangerous discharge of a firearm–beyond a reasonable doubt.  Taken together, this is a very high bar
for prosecutors to overcome.