There is an ever growing “hazy border” between excessive and acceptable use of deadly force by law enforcement.  This reality is demonstrated by the continual release of video documenting unreasonable and inhumane executions by police, acts that in a “pre-video” era would have been covered up and ruled justified.


Some People Should Not be Cops


Chicago police officer Jason Van Dyke had a history of using racial epithets and excessive force during his 18 years as a member of the Chicago Police Department (CPD). In fact, 14 such complaints lodged against him.  Van Dyke was absolved of any wrongdoing stemming from these complaints by the CPD, despite the fact that one resulted in the complainant receiving a $350,000 civil judgment because of the officer’s misconduct.


Jason Van Dyke should not have been wearing a police uniform in October 2014. He had never been able to embrace the time-honored police creed “to protect and serve.” It was foreseeable that eventually he would kill someone. He did so in October 2014 when he shot 17-year-old Loquan McDonald 16 times in a span of fifteen seconds.


The young man’s offense?


McDonald fled from a police officer who gave chase.


Van Dyke arrived on the scene just as the teen was walking down the street. Without any provocation, Van Dyke starting shooting from ten feet away and continued shooting for the next 13 seconds as the dying young man lay curled in a fetal position on the street. Van Dyke then walked up and kicked a folded pocketknife with a 3-inch blade out of the kid’s hand. An autopsy would show McDonald had PCP in his system.


Accomplices to Murder


The powers that be in the CPD, the Mayor’s Office, and certain members of the City Council knew Van Dyke had murdered young McDonald. They saw the video. The police at the scene of the shooting knew the McDonald shooting was murder. They seized and erased 86 minutes of security video taken from a camera at a nearby Burger King. Jay Darshane, Burger King’s district manager, said three officers entered the restaurant, viewed the video and left three hours later. The following day the Independent Police Review Authority viewed the same video and discovered 86 minutes had been deleted.


The case was turned over to Cook County State’s Attorney Anita Alvarez who apparently sat on the investigation for more than a year until November 25, 2015, when she announced that Van Dyke had been charged with first-degree murder. Alvarez said the video of the shooting was “difficult to watch” because it was so “graphic and violent.”


Perhaps because the CPD told the State’s Attorney that Van Dyke killed McDonald in “self-defense,” Alvarez felt compelled to “thoroughly investigate” the case before releasing the nearly 7-minute police video and announce the charge against Van Dyke.


Stench of Politics


But we suspect the delay was tied more to politics than a just and thorough investigation.


Mayor Rahm Emmanuel’s reelection campaign was in full swing during this protracted investigation and ended this past April with the mayor being reelected. Adding to the suspicion, the Chicago City Council paid $5 million to Loquan’s mother just ten days after the mayor’s reelection. Adding to the rotten political smell to this sordid affair, the State’s Attorney chose to release the video and charge Van Dyke four months before her own reelection bid next March.


Badge Equals License to Kill


The circumstances surrounding the shooting death of Loquan McDonald underscores one salient point: a significant percentage of our police believe they have an unfettered license to gun down criminal suspects with impunity. This belief is fueled by decisions handed down by the U.S. Supreme Court extending what is known as qualified immunity to police officers in deadly and excessive force cases.


In conjunction with policies encouraging militarization of the police, “shoot to kill” training, and police codes of silence, these Supreme Court decisions have contributed to an increasing law enforcement policy that deadly and/or excessive force should be the first, not the last, response in police-citizen confrontations.


Supreme Court Gives Immunity for Murder by Cop


Most recently, on November 9, 2015, the Supreme Court in an 8-1 decision extended qualified immunity to a Texas police officer who not only violated protocol but disobeyed instructions to stand down by his supervisor.


Israel Leija had an outstanding criminal warrant against him. On the night of March 23, 2010, a Tulia, Texas police officer attempted to execute that warrant. Leija fled and entered onto an interstate highway pursued by the local police officer who was quickly joined in the chase by Texas state troopers. A police officer from another nearby city set up tire spikes in three locations near an underpass where he suspected Leija would pass. This officer, and the others who joined him, had received training in this high speed chase protocol.


That’s when a Texas state trooper named Chadrin Mullenix got involved in the high-speed chase drama. Mullenix decided to engage in another tactic to stop the fleeing vehicle. Armed with his service rifle, Mullenix assumed a shooting position above the overpass ready to fire into the vehicle to disable it. He had never received any training in this maneuver nor had he ever attempted it before. Mullenix was instructed by his supervisor to “stand by” to “see if the spikes work[ed] first.”


Hunting Season


As soon as Mullenix spotted Leija’s approaching vehicle, which had slowed its speed, he opened fire. Four of his six shots struck Leija in his upper body killing him. None of the six shots struck the vehicle’s radiator or any other part that would have disabled it. Leija’s family filed a civil rights suit that Mullenix violated the excessive force doctrine of the Fourth Amendment.


The trial court and the Fifth Circuit ruled that the lawsuit could proceed. They ruled that Mullenix was not summarily entitled to qualified immunity because the “clearly established” law in the Fifth Circuit was that a police officer “may not use deadly force against a fleeing suspect who does not pose a significant threat of harm to the officer and others.”


Supreme Court Upholds Street Execution


The Supreme Court overruled the lower courts, saying it had effectively rejected this rule in 2004. The court then held that broad general rules of law do not apply in deciding whether an officer should be granted qualified immunity.  Against this backdrop, the court concluded in the Mullenix case:


“Finally, respondents argue that the danger Leija represented was less substantial than the threats that courts have found sufficient to justify deadly force. But the mere fact that courts have approved deadly force in more extreme circumstances says little, if anything, about whether such force was reasonable in the circumstances here. The fact is that when Mullenix fired, he reasonably understood Leija to be a fugitive fleeing arrest, at speeds over 100 miles per hour, who was armed and possibly intoxicated, who had threatened to kill any officer he saw if the police did not abandon their pursuit, and who was racing toward [the tire spikes] position. Even accepting that these circumstances fall somewhere between the two sets of cases respondents discuss, qualified immunity protects action in the ‘hazy border between excessive and acceptable force.’”


Police Cheer Supreme Court, Load Weapons


Attorneys representing law enforcement agencies across the country immediately sent legal memorandums to those agencies apprising them of the Supreme Court’s decision in the Mullenix case.


In effect, the Mullenix ruling says  law enforcement officers have a license to kill when there is a “hazy border between excessive and acceptable force.”


The City of Chicago chose to settle the Loquan McDonald lawsuit out of court, agreeing to pay out the $5 million (and that was done, we suspect, more for political than legal reasons). Had the lawsuit gone to trial, Van Dyke would have had a viable qualified immunity defense. McDonald, like Leija, had fled the police; and, like Leija, McDonald was armed; and, like Leija, McDonald was intoxicated. Similarly, both of these cases ended in the tragedy of unnecessary murder.


Under Supreme Court authority, those circumstances gave officers like Van Dyke a legal license to kill. The number of shots fired by an officer does not matter. He or she can fire 100 shots if that border between excessive and acceptable force is “hazy.”


It is tragically unfortunate but the reality is that police are now licensed to act in an undeclared “Marshal law” manner—shoot first, ask questions later.


I may be white, but I ain’t stupid.  It is time for this to stop.