By Oscar H. Blayton
On Sept. 16, 2016 Tulsa police officer Betty Jo Shelby shot and killed Terence Crutcher even though he was unarmed and had his hands in the air. On May 18, 2017, a jury found Shelby “not guilty” of a crime.
In years past, statutes written into the legal codes of this country reaffirmed the notion that people of color were of less worth than whites. We have come a long way since then, and many of us are given to congratulating ourselves for now having just and egalitarian laws.
But laws are not just those statutes that are written in the books. There are two kinds of laws. The laws written in books are called de jure. But the laws enforced out on the streets are called de facto laws.
The difference between these two types of laws is evident if we look at the speed limits posted on the public highways. While the posted legal speed limit may be 70 miles per hour, it is unlikely that someone traveling at 75 miles per hour will be stopped for speeding. While 70 miles per hour is the de jure law, seventy-five miles per hour is the de facto law.
Additionally, an attractive female driver stopped for speeding at 85 miles per hour may not be ticketed by the police, while an unattractive male caught driving at the same speed may be required to appear in court and possibly go to jail. The de facto law may vary from case to case.
Law enforcement officers are decision makers as much as judges and juries. And they are the ones usually who establish and carry out the de facto laws in this country. But in far too many cases, their decisions result in an unwarranted execution of an innocent and unarmed person.
For years now, activists have taken to the streets, putting their bodies in harm’s way to end this long-standing evil in our country. Our legislators, on the other hand, have been disappointingly slow to adequately address this problem.
Two years ago, there was much back slapping and victorious smiles in Congress when the Police Reporting Information, Data, and Evidence Act of 2015 – (the PRIDE Act) – was introduced in the U.S. Senate. This act, if passed, would require police departments to keep a record of, and report, killings by officers in their employ. But the PRIDE Act has been stuck in the Senate Judiciary Committee since its introduction. And in the current atmosphere of conservative triumphalism, it is unlikely that this act will become a law.
But even in the unlikely event that this law is passed, it would only echo the LifeLock television commercial – where the person dressed as a bank guard explains that he is a “bank monitor” not a bank guard, and his only function is to report on bank robberies, not to prevent them.
Terence Crutcher lies in his grave because Betty Jo Shelby made the de facto decision to kill him, even though he was unarmed, walking away from her and had his hands in the air where she could see them. But an Oklahoma jury made the de jure decision to acquit his killer.
Walter Scott lies in his grave because North Charleston police officer Michael Slager made the de facto decision to kill him even though he was unarmed and running away with his back to the Slager. But a South Carolina jury made the de jure decision to not convict the killer.
In both cases, the white officers said that they feared their victims, both of whom were Black men.
Simply monitoring these killing will not stop them. Something more needs to be done. We need de jure laws in place that will override the ability of police officers to make de facto legal decisions that result in the unwarranted killing of Black and brown people.
People of color sit in legislatures in almost every state house in the nation. This is a result of decades of struggle and sacrifice. Now it is time to make use of those gains for which we paid so dearly, and make policies that will protect us. It is time that we make demands of all our legislators, but particularly our legislators of color. We must demand that they do more than attend public functions and present birthday resolutions to centenarians who live in their districts. Legislators make laws, and people of color are in dire need of some new laws in America.
For starters, we should make it a crime for a police officer to knowingly use deadly force against an unarmed person who presents no threat.
Legislators in every state and in Congress should pass laws that would make this a reality. The language could read like this:
Any individual who uses deadly force against any person who is more than five feet away, and is visibly unarmed, shall be presumed to have the intent to commit murder against that person against whom the deadly force is used.
Any individual who uses deadly force against any person who is seated or in the prone position, is visibly unarmed and has initiated no physical contact with the person using the deadly force, shall be presumed to have the intent to commit murder against that person against whom the deadly force is used.
Fear alone, if proven, shall not rebut the presumption of the intent to commit murder in any circumstance described in this section.
No authority, vested in any individual by any governing body for the reasonable use of force, shall rebut the presumption of the intent to commit murder in any circumstance described in this section.
Police officers in America have a “get out of jail free card” that they routinely play when they are caught abusing a person’s rights by engaging in the use of excessive force. That “get out of jail free card” is played by officers simply by stating that they feared for their own safety because of a perceived threat from the victim.
A law, such as the one suggested, would eliminate that card and require the officer to prove that his or her belief that the victim presented a threat was reasonable, and that the perception was commonsensical.
This is not making the officer “guilty until proven innocent,” as many in law enforcement would argue. There are many laws that put the burden of proof upon the accused. For example, a teenager caught with marijuana in the glove compartment of the car he is driving must prove that the marijuana is not his.
Law is supposed to follow the common-sense rule, and there is nothing commonsensical about fearing someone who has his hands in the air 15 feet away from you, or someone running away from you. We can no longer allow racial bias to trump common sense and allow the murder of citizens by agents of the state. And until we begin to fix our laws, racial bias will tolerate the murder of people of color by white agents of the state.
We should urge lawmakers to pass laws to stop these injustices. Otherwise we will prove Justice Roger B. Taney right when he delivered his opinion in the Dred Scott case and stated that African Americans [and by extension – all people of color] have “no rights which the white man [is] bound to respect.”
Oscar H. Blayton is a former Marine Corps combat pilot and human rights activist who practices law in Virginia.