SCOTUS Ruling on Police Brutality Eliminates Right to Due Process for Disabled Black Men

From the perspective of any average citizen of Charlotte, North Carolina — Dethorne Graham was just another fucked up black man.

No one could have known what he was doing at the store. He went in. He didn’t buy anything. He came out. And he got into another black guy’s car and drove away.

It just wasn’t normal.

The officer didn’t know what the men had done, but it was reasonable to assume that something had happened. It was reasonable to assume that the two men were engaged in theft or a robbery or some other criminal act. And it was reasonable for the officer, without any evidence whatsoever, to pull the two men over.

His name was Dethorne Graham. He was a diabetic. He started having an insulin reaction, so his friend William Berry drove him to the nearest convenience store to get some orange juice.

According to the chief scientific and medical officer for the American Diabetes Association Rob Ratner, an insulin reaction can be physically debilitating. He describes, “You have a classic adrenaline rush. You become sweaty and clammy. Your heart races. You start to tremble. Those are the classic signs of hypoglycemia.” Anxiousness, nervousness, and irritability are also common warning signs.

Dethorne Graham went into the store and immediately saw the lines were too long for him to wait. He quickly made his way back to Mr. Berry’s car and they headed towards a friend’s house to get the aid he needed.

That was when they were pulled over by Charlotte, North Carolina Police Officer, M.S. Connor.

The officer noticed that the black man in the passenger seat was acting suspiciously. He was clearly nervous, but something else was wrong with him. He must’ve been wasted or on something. The man in the passenger seat was clammy, discolored, and shaking. He wasn’t making any sense. Something abnormal was definitely happening.

The driver of the car, another black man by the name of William Berry, wasn’t acting how a black man should be acting in the presence of an officer, either. He kept trying to defend himself and was arguing with the officer. He kept saying that Mr. Graham was having a sugar reaction and needed some orange juice.

The police officer didn’t believe him. He figured the man was all fucked up on something and his friend was trying to get him some juice to sober him up. Instead of responding to Berry, the officer made a call to the convenience store to see if a crime had been committed or not. He would have to wait for a call back.

Berry and Graham tried to explain to the officer that Graham was in diabetic crisis and needed medical aid. They explained to him that Mr. Graham was having an insulin reaction and that he needed orange juice to counteract it, or his well-being could be placed in serious danger.

Connor refused to listen to them. He placed a call in to the convenience store to find out what crime Graham had committed and refused to let the two men go anywhere until he found out.

In the meantime, Graham began to decline rapidly.

After the body begins to weaken, the insulin reaction targets the brain. According to Ratner, “The brain requires glucose to function. When glucose levels fall, the brain begins having trouble processing. You find yourself reading the same paragraph over and over again or become clumsy and uncoordinated.” Confusion, exhaustion, impatience, anxiousness, and delirium begin to set in.

The men continued pleading with the officer, but Connor continued to ignore their pleas.

The officer refused to release Graham and Berry — and Graham’s “unreasonable” behavior began to escalate. He was becoming impatient and incoherent. His frustration level noticeably increased. Assuming that he was at risk of being harmed by at least one of the two irrational black men, the officer called for back-up.

In a state of panic and confusion, Graham got out of Berry’s car, ran around it twice, sat down on the curb, and passed out cold.

Seizures and loss of consciousness are also predictable symptoms of an escalating insulin reaction. Rather than call for an ambulance, Connor called for back-up.

Four more officers arrived at the scene. Instead of medical assistance, Graham’s fate was left in the hands of 5 white police officers that saw him as nothing more than a fucked up black man. One of them even had experience with diabetics. His professional opinion guided what would happen next. Despite another friend arriving at the scene with juice for Graham, the back-up officer confirmed for Connor, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the motherfucker but drunk. Lock the son-of-a-bitch up.”

The officers rolled him over, cuffed him, lifted his unconscious body, and slammed his body on top of the cop car.

Dethorne Graham regained consciousness on the hood of the police vehicle and once again began pleading with the officers for orange juice. He told the officers that he had a diabetic decal in his wallet that would prove his condition and confirm that he needed to counter an insulin reaction. He pleaded for assistance.

The officers told him to “shut up.”

Next, they lifted his body off of the police car and threw Mr. Graham into the backseat — headfirst — slamming his head into the doorframe.

Another friend of Graham and Berry arrived at the scene and also tried to explain to the officers what was happening to Mr. Graham. Convinced the black man was just a drunk criminal, they also told this person to “shut up” and awaited confirmation from the store that Mr. Graham should be taken to the precinct and jailed for the commission of a yet unknown crime.

The Charlotte North Carolina police officers did not get the confirmation they were looking for.

A representative of the store that Dethorne Graham had walked out of reported to law enforcement that neither he nor William Berry had done anything wrong, and nothing unusual had occurred at that location.

The police could have released Graham immediately. Graham could have seated him back in the passenger seat of Berry’s car, had a sip of orange juice, and made his way back home — but the Charlotte PD was not done with him just yet.

Instead of releasing Graham, they insisted to driving him home themselves. When they reached their destination, they grabbed the battered and half-conscious man in medical crisis and tossed him into his yard.

Mr. Graham sustained many injuries to his head and body, including a bruised forehead, cuts on his wrists from his handcuffs, and a broken foot. He also sustained a blow that caused him permanent hearing damage.

Dethorne Graham filed suit against the officers that restrained him, broke his bones, and refused him aid.

Federal Protections from Police Brutality: The Ku Klux Klan Act

The law that gave Graham the legal standing to sue the officers that brutalized him is called 42 USC 1983. This piece of legislation is the re-adoption of the Civil Rights Act of 1871, which was more commonly referred to as the KKK Act.

42 USC 1983, this piece of legislation not only serves as the cornerstone of federal policy protecting citizens from deprivation of rights under the color of law, but it was also a key component of holding the Union itself together during Reconstruction.

The North recognized the threat that former slave patrols and local law enforcement in the South posed to the newly sutured United States of America. Specifically, they understood that if local law enforcement was allowed to operate as an extension of Confederate policy and white supremacy, the Union would crumble.

In efforts to control the local arm of militant Confederate control, the Civil Rights Act of 1866 was passed. This act included 18 USC 242, which was the first attempt by federal authorities to criminalize police brutality.

And it failed. Miserably.

Under the CRA of 1866, only the Attorney General was given the authority to file charges against law enforcement officers suspected of deprivation of rights. Individuals still did not have the right to bring charges against law enforcement officers themselves. Subsequently, the policy did practically nothing to protect the black people from the violence of white supremacist police officers.

As second attempt was made to curb the use of police officers to deny black people their constitutional rights with the passage of a new Civil Rights Act three years later. Commonly known as the KKK Act, the Civil Rights Act of 1871 was part of a wave of policies designed to protect what the Union called the Enforcement Acts.

The KKK Act was also the first piece of federal legislation that gave an individual the right to sue law enforcement for violation of rights under the “color of law.” Intent on seeing enforcement through, not only did the federal government give (black) individuals the right to sue police officers, but in a rare acknowledgement and confrontation of jury bias, they appointed all black juries to try KKK Act violations.

That’s correct.

All.

Black.

Juries.

The combination of legal standing and a jury free of white supremacists proved to be incredibly effective. So effective, in fact, that the KKK was disbanded in less than a year. It took them close to 40 years to recover.

After the initial flex of federal muscle, though, the law fell out of use. In short time, Jim Crow became the law of the South and by the mid 1880’s, the Confederacy regained electoral power. White judges and white courts systematically refused to respond to the legal rights of black Americans. And police brutality would go largely unaddressed at the federal level until the 1960s and 1970s.

The Civil Rights movement forced the nation to once again focused on the role the relationship between white supremacy, law enforcement, and violence against black people. The KKK Act was temporarily revived and recodified as 42 USC 1983.

This piece of legislation stands today as the only legal power an individual can exercise in efforts to combat police brutality. And because of the work of Conservatives during the Reagan/Bush Administrations — it is completely useless.

The Courts Decide Who is Above the Law

42 USC 1983 stood in the way of the goals of both politically conservative and racially biased Republicans.

It would take a multi-part strategic effort to neutralize this policy and re-energize law enforcement as a tool for the advancement of white nationalism and Confederate policies. And this effort would only succeed under a conservative administration and a conservative Court.

The Reagan/Bush Administrations provided the perfect windows of opportunity, and the first blow was dealt to 42 USC 1983 in 1982.

In 1982, the court ruled on two cases involving a man named A. Ernest Fitzgerald. Fitzgerald was a contractor for the US Air Force. He discovered financial mishandlings relating to military contracts and reported them to legislators through a Congressional hearing. Some viewed Fitzgerald as a whistleblower. Others, including Richard Nixon, considered him a leak.

Nixon himself ordered for Fitzgerald to be fired and his aides carried out the order. Fitzgerald sued Nixon and the aides for removing him from his post in retaliation for his Congressional testimony.

SCOTUS used these cases as an opportunity to clarify the two types of immunity given to federal officials and other actors operating under the color of law. They are absolute immunity and qualified immunity.

Through the case of Nixon v Fitzgerald (1982), the Court affirmed that the president had absolute immunity from civil damages, and that criminal damages were only recoverable through acts of Congress.

SCOTUS held: “The President’s absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition of the separation of powers and supported by the Nation’s history. Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government…The exercise of jurisdiction is not warranted in the case of merely private suits for damages based on a President’s official act.… A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress….”

Through the case of Harlow vs. Fitzgerald, the Court affirmed that certain government officials enjoyed a more limited form of immunity called qualified immunity.

Whereas the KKK Act and 42 USC 1983 were established to prevent law enforcement and government officials from denying individuals their Constitutional rights, the ruling in Harlow repositioned law enforcement as part of a protected class of state operatives that were allowed to deny someone their rights — if they argued that it was unclear to them what they were doing was wrong. And they did so by citing the language of the Fourth Amendment and due process.

SCOTUS held: “…government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

These two cases provided government officials and law enforcement with protections that not only placed them above the law, but places citizens in their presence below it.

The only thing that law enforcement officers were not allowed to do was violate clear rights of citizens. The most commonly denied rights of minorities faced with excessive and deadly police force are the 14th Amendment right to Equal Protections and the 4th Amendment right to due process.

The legal strategy used to dismantle these protections was to first assert that in cases brought to court under 42 USC 1983, the Court should use the test for due process under the fourth amendment rather than analyzing the incident in the context of the test for equal protections under the 14th Amendment. Once that was accomplished, they would argue that due process claims should be analyzed in terms of “objective reasonableness” and not “due process.”

In doing so, conservative legal strategist would be able to effectively eliminate the 14th Amendment by blocking it with the 4th Amendment. Then, they would weaken the 4th Amendment to the point of neutralization. In this way, they could render 42 USC 1983 completely useless and undo 100 years of federal protections from both police brutality and the advancement of Confederate politics through armed local control.

It took them just a few years and two Court rulings to get it done.

The first key ruling was issued by SCOTUS in the case of Tennessee v Garner. This case involved a police shooting that killed a 15-year-old unarmed black child named Edward Garner.

Garner was part of a group of boys that were suspected of burglary. A resident saw the boys in a neighbor’s home and called the police. The boys fled and one of the officers caught up with the teenager, who had been stopped by a chain link fence. Garner turned to climb the fence and flee. The officer opened fire. One of the bullets hit him in the back of the head, and the boy died.

His father sued the police under 42 USC 1983 for violation of his son’s 4th Amendment Right to due process. And he won.

The Court ruled that an officer cannot use deadly force to stop a fleeing suspect unless there is probable cause to believe that person poses a threat to the officer or others.

SCOTUS held: “The Fourth Amendment, for purposes of this case, should not be construed in light of the common law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon….

While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect — young, slight, and unarmed — posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous.”

On the surface, this seemed like a victory in the battle against police brutality and deprivation of rights. Strategically, conservatives were able to take this optical loss and turn it into a tactical win in their efforts to dismantle 42 USC 1983.

Building off of the assertion that a conviction cannot be secured under 42 USC 1983 unless a violation of the 4th Amendment was established, conservative lawyers argued that the proper test of a 4th Amendment violation should be analyzed in light of “reasonable objectiveness” — not “due process.”

That case was called Graham vs. Connor.

In this case, the Court asserted that it was reasonable to mistake a black man having a diabetic crisis in need of assistance for a criminal that was a threat to the general public and deserved to be brutally attacked by police.

The Supreme Court ruled that no jury could possibly have convicted Officer Connor of violating Dethorne Graham’s 4th Amendment rights because it was objectively reasonable for officers to assume that his behavior was suspicious. As a result, Connor and the other officers could not be held in violation of 42 USC 1983.

Held: “All claims that law enforcement officials have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard.”

This ruling effectively removed the legal standard that a suspect is innocent until proven guilty, reinstated lynching as the rule of law, and neutralized the ability for the federal government to prevent law enforcement from acting as an extension of white supremacy or treason.

The case of Graham v. Connor also gives police officers the right to use excessive and deadly force without legal consequence on any of the 30 million people living with diabetes that may need assistance during a medical crisis. It gives officers the right to use excessive and deadly force on a black person that goes into a store but doesn’t make a purchase.

It gives officers the right to use excessive and deadly force on any person living with physical or mental disabilities whose nonnormative behaviors can be labeled abnormal and suspicious in a court of law. (John T Williams, Jeremy McDole, Mario Woods) It gives officers the right to use excessive and deadly force on individuals that are unarmed but holding an object. (Tamir Rice, Stephon Clarke, Magdiel Sanchez) It gives officers the right to use excessive and deadly force on a black man exercising his Second Amendment right to bear arms. (Philando Castile) And it gives officers the right to use excessive and deadly force on any person of color or person with disabilities that may exhibit signs of nervousness in the face of armed law enforcement that had the power to take both their rights and their lives away.

According to the highest court in the United States, some people are above the law. And some people are below it.

Under the current interpretations of 42 USC 1983 and the 4th Amendment, people of color, people living with disabilities, and anyone living outside of the constructs of neo-Confederate and white nationalist meritocracy is suspect. Because they are suspect, they automatically hand over their rights under the 14th and 4th Amendments. And because they have no ability to prove their rights were violated, they have no ability to secure a conviction under 42 USC 1983.

As a result, in the face of law enforcement — black lives don’t matter. Black disabled lives matter even less.

Until legal efforts are taken to restore the 4th Amendment rights to due process and 42 USC 1983’s protections against deprivation of rights under the color of law, the police will be allowed to operate as an extension of not only white nationalism, but the current expressions of white nationalism under Donald Trump and the far-right GOP.

Until our rights are restored in court, the police can kill whoever they want. And they can get away with it.

To learn more about Dr. GS Potter and the Strategic Institute for Intersectional Policy (SIIP), visit: http://strategycampsite.org/v2/