Why there will be no justice for Jacob Blake
His shooting may have been unjust, but in the eyes of the law, it probably wasn’t ‘unreasonable’
There’s a reason why the chant “no justice, no peace” is a staple of protests against police violence. The slogan is evergreen. It states simply and plainly what the deal is: Give us justice, then there will be peace. And it’s a compact that is constantly broken. The latest wave of unrest that has broken out since Kenosha police shot Jacob Blake is rooted in a lack of justice — or an expectation of it.
As infuriating as they may be, the actions of officer Rusten Sheskey, the officer who shot Blake seven times in the back, will most likely be deemed lawful.
When it comes to policing, there is broad space for injustice within the boundaries of the law.
Something an officer does can be unjust but not unconstitutional, and this contradiction has driven the cycle of police violence and revolt over the past few decades.
Blake’s case calls to mind the 2010 fatal shooting of Aaron Campbell, another unarmed black man, in Portland. His girlfriend had called the police to have them do a so-called welfare check because he was suicidal over the recent death of his brother. He was also reported to be possibly armed.
At first, the situation seemed under control. A police negotiator talked Campbell into coming out with his hands on his head. However he failed to comply with further instructions to put his hands in the air, so one officer shot him with a beanbag round. After that, he fled to his car. There was another volley of beanbag rounds. Police released a K9 and then officer Ron Frashour shot Campbell in the back with an AR-15 as he was running away.
He later claimed that Campbell appeared to be reaching to his waistband for a gun (the same was said of Michael Brown in Ferguson). Other witnesses say he was merely touching his abdomen where he had recently been hit by the beanbag rounds, and Frashour misinterpreted these actions.
Frashour not only avoided criminal charges but also was allowed to remain on the force. Though the police chief fired him, the decision was appealed through the union, and an arbitrator ordered the city to reinstate Frashour.
In his ruling, the arbitrator wrote “This was a very tragic case, one where the Monday-morning quarterback has the clear advantage when divining what went wrong.” They cited case law that establishes deadly force is justified “if a subject appears to be reaching for what could reasonably be considered a gun.”
In other words, where the law is concerned, it only matters if an officer perceives a threat regardless of whether one exists. On appeal, a stage judge upheld the arbitrator’s finding.
At every step of the way, the actors involved were arguably interpreting the law faithfully and using sound legal reasoning, but the law itself is a big part of the problem. Judgments regarding use of force at every level — internal investigation, arbitration, criminal investigation, appeal — rely on a set of principles laid out in the Supreme Court case Graham v. Connor.
That case created the “objective reasonableness” standard. Under Graham, force is evaluated according to the “totality of circumstances” based on criteria commonly referred to as “Graham factors.” These include seriousness of the crime, threat to the officer or others, and attempt to resist or flee.
Uses of force are judged according to how a hypothetical “reasonable officer” would act in a given circumstance. Moreover, Graham forbids the use of “20–20 hindsight” to judge officers’ actions. In practice, this means that the law privileges officers’ own perceptions — as well as their prejudices — when it comes to deciding if they used force lawfully.
Officer Jeronimo Yanez was acquitted under this framework. Though many would argue that Yanez acted unreasonably — some would say hysterically — when he shot to death Philando Castile in front of his child and girlfriend, the jury found him not guilty of second-degree manslaughter.
Yanez fired into the car only seconds after Castile calmly informed him that he had a legal firearm. He believed that Castile was reaching for the gun. As is the case with many police trials, the high burden of proof and the Graham mandate regarding “20–20 hindsight” worked in Yanez’s favor.
It could not be proven beyond a reasonable doubt that a reasonable officer would not have done the same in his place. Therefore, as far is the law was concerned, Yanez acted “reasonably.”
The high-profile killing of Che Taylor in Seattle played out in a similar way. Taylor was shot by two plainclothes narcotics detectives who claim to have observed him with a holstered firearm that he was prohibited from owning due to pasts felony convictions.
When moving in to arrest him, they gave Taylor conflicting orders. One detective told him to put his hands up, while the other told him to get on on the ground. He appeared to be trying to comply with both, but when he crouched to get on the ground, the officers interpreted this as lunging for a weapon inside his car. They unloaded on him from extremely close range.
Afterward, they found Taylor’s holster was empty, but police say a gun was found under the passenger seat. Ultimately, the prosecutor declined to press any charges, arguing that the officers had a reason to believe he posed a deadly threat.
Here we see a frustrating paradox where two things can simultaneously be true: Taylor’s shooting was unjust and unnecessary, yet the prosecutor can be said to have applied the law correctly.
At the time Taylor was killed, Washington State law effectively made it impossible to charge a police officer with murder.
In order to convict, prosecutors were required to demonstrate malicious intent.
Che’s brother Andre led a campaign to change the law. However, had that law been in place at the time, it’s doubtful that the outcome would’ve been different. The shooting would still probably have been legally justifiable within the vast architecture of case law built upon Graham.
And that brings us back to Jacob Blake. Though many facts about the case have yet to be revealed, one can make an educated guess about the type of defense Rusten Sheskey’s lawyers will use.
They’ll list off Graham factors. For starters, they’ll claim that Blake was resisting and fleeing. Although he was not armed, they’ll say that officers had a reasonable belief that he might be. On that basis, they will argue that it was reasonable for Sheshky to assume Blake may have been reaching for a weapon.
If they’re really brazen, his attorneys might opt for a truly perverse defense. They could argue that Sheshky was concerned Blake might escape at high speeds with his children in the car, so it was necessary to use force on their behalf — the “defense of life” standard. In other words, Sheshky was forced to shoot their father multiple times in the back in front of them for their own benefit.
Just as one can predict the legal arguments that will be used in Sheshky’s defense, one can easily imagine them being successful in court. After all, they have been time and again.
But focusing on just the headline-grabbing cases allows one to see only a tiny sliver of the problem. For every Jacob Blake or Aaron Campbell or George Floyd or Philando Castile, there are thousands of others whom the justice system has failed in ways that are no less outrageous.
Everything flows from Graham. It forms the basis for every department’s use of force policy. Civilian oversight boards and internal investigations cite it prolifically. So do arbitrators and police unions.
The same broad, subjective test for determining “reasonableness” under which Jeronimo Yanez was acquitted is applied every day at police agencies across the country. This ensures a process weighted toward officers from top to bottom.
What’s more, their job requires officers to have a relatively sophisticated understanding of the law, which works in their favor. When writing reports on use of force, they know how to frame their actions as justifiable based on Graham factors — and their union representatives are even better at this.
Impeccably designed accountability regimes that comply with every constitutional standard can still fail to weed out the proverbial “bad apples.”
Only a tiny fraction of use of force cases are investigated. Fewer still result in discipline. And in the event that a particularly heinous and well-documented example leads to termination, there’s always a chance it can be overturned by an arbitrator.
This creates a sort of moral hazard where officers feel emboldened by the knowledge that they have little chance of being caught or facing serious consequences.
Until Graham is supplanted by a new standard or meaningfully revised, there will be no justice for people like Jacob Blake.
