Justice  /  Explainer

The Bad-Apple Myth of Policing

Violence perpetrated by cops doesn’t simply boil down to individual bad actors—it’s also a systemic, judicial failing.

Since the beginning of the Black Lives Matter movement, in 2013, stories concerning police use of force have been prominent in the news and on social media. Much of the public conversation has focused on a collective exasperation: How is it that police can beat and kill men and women, many of them unarmed, yet rarely be held accountable?

The answer lies in large part in the 1989 Graham decision. Graham brought a federal claim against the Charlotte police officers, under a civil-rights statute called 42 U.S.C. §1983, in the U.S. District Court for the Western District of North Carolina. He argued that the excessive use of force against him violated substantive due process, or his right to be free from such abuse under the Fourteenth Amendment—one of the Reconstruction amendments ratified after the Civil War to give African Americans full legal equality with whites.

The trial court, as well as the Fourth Circuit Court of Appeals, sided with the officers. But, in deciding to review the case, the Supreme Court made a surprising move. Until that point, the legal standards through which federal courts reviewed claims of excessive force by state and local police were diverse. Many cases used substantive due process under the Fourteenth Amendment, following an earlier Second Circuit Court of Appeals decision in Johnson v. Glick, in which a detained man alleged that a correctional officer had assaulted him. This standard had been criticized, however, for emphasizing officers’ subjective mental state—that is, whether the force was applied in “good faith” or “maliciously and sadistically for the very purpose of causing harm.”

In the Graham decision, the Supreme Court held that substantive due process was not the applicable constitutional standard. Rather, the Court said the proper constitutional test was whether the action was “reasonable” under the Fourth Amendment, which prohibits unreasonable searches and seizures. (Use of force by the police during an arrest or investigative stop is understood to be a type of “seizure.”)

The choice was significant. Turning away from the Fourteenth Amendment as a constitutional standard would come to represent a missed opportunity to situate excessive force in minority communities as a long-standing structural problem. The Fourth Amendment was developed at a time when slavery was condoned by the Constitution, and it is largely preoccupied with the relationship between individuals and the government. The Fourteenth Amendment, on the other hand, has its roots in the post–Civil War effort to extend legal equality to former slaves. Particularly through its clause guaranteeing equal protection of the law, it reflects an awareness of how racial groups, not just individuals, can face state persecution. (Although the Fourteenth Amendment’s due-process clause is what allows the Fourth Amendment to apply to state and local police, as opposed to only the federal government, the Graham decision nonetheless represents a significant retreat from the Fourteenth Amendment’s original purpose of protecting racial minorities from state violence and other inequities.)

The Court’s decision to embrace a Fourth Amendment perspective that frames excessive force as an isolated interaction between police and individuals would impede federal courts’ ability to consider how race and racism can influence an officer’s decision to use force. To be sure, before Graham, substantive-due-process claims concerning police violence focused largely on individual liberty rather than structural conditions. But shifting the constitutional standard for excessive force away from the Fourteenth Amendment would prove to hinder courts’ ability to consider such abuse as a problem tied to issues of equal protection and racial subordination—in turn limiting the types of claims that victims of police violence could successfully bring. The disproportionate policing of racial minorities and the state-sanctioned violence that often ensues (performed by officers of all racial backgrounds) had been a dire problem in communities of color, and would continue to be. Decades after the Graham decision, research would show that black men are three times more likely to be killed by the police than white men. Police violence would come to be understood as a major public-health issue.