Hypothetical Verdicts: Crutcher, Shelby, and Blame

Last night a jury in Tulsa reached a verdict in a high-profile case in which a police officer, Betty Shelby, shot and killed an unarmed black man, Terence Crutcher. When she shot him, Crutcher was neither doing what she ordered him to do nor posing a clear threat (he was walking away from her with his arms raised, apparently putting those arms on the side of his car). Like so many other cases like it, the jury came back with a "not guilty" verdict.

I want to begin by saying​ something about this case that I think ought to be uncontroversial. What happened in this case is that a man with a drug problem who in fact posed no threat encountered, as part of a routine traffic stop, an officer who set out that day to serve and protect, not to kill people. And yet the officer shot the man, killing him. When that happens, something has gone terribly wrong.

What went wrong was not an "act of God." Crutcher did not die from an illness or a natural disaster. He was shot. And yet he did nothing that deserved death. He was under the influence of hallucinogenic drugs, and he wasn't perfectly obedient to the officers commands. But these are not the sorts of things that warrant death. And so something has gone terribly wrong.

That is the uncontroversial thing I want to l say. But now come the difficult questions. Suppose we accept the jury's judgment that the officer was not responsible for what went so terribly wrong. Who is, then? Is it appropriate to blame the man who died--blame him because in his confused state he wasn't absolutely and perfectly obedient, because he went to put his hands on his car in a move that trained officers (but not the man) have learned bad guys might use to grab for a gun? Is that the choice the jury was given? Blame the white woman in the police uniform, the one sitting in front of them looking earnest and just like them, a good citizen who means well; or blame the drug-using black man who is gone, who is nowhere in sight because he is dead, dead by a bullet lodged in his lung, a bullet propelled there by the twitch of that earnest woman's trigger finger?

Perhaps the jury had too few options. Perhaps when it comes to assessing responsibility for something that has gone so terribly wrong, juries are forced into a false dilemma.The jury was not given the option to  deliver, for example, the following hypothetical verdict: "We cannot convict you because the fault is wider than you and deeper than you. You were just there at that moment with the legacy of our cultural conditioning and our collective fears; you were there, and the systems and practices and norms of our society came together in you, pulling the trigger and making a man die, a man who posed no threat. But it could have been any one of us, and we would have done the same."

There was no option for saying that. Should there be?

Shelby and Crutcher were not alone in that moment. I don't just mean that other officers present and the helicopter whirring overhead. Social forces came together in that moment--including, perhaps, the white majority's collective fear of black men, a fear that we feed and perpetuate in all kinds of subtle ways. We feed it and perpetuate it in the unconscious minds of children who grow up wanting to serve and protect. And then one day an officer is afraid that she won't make it home alive--even though as a matter of fact the man was moving slowly away from her with his arms in the air.

Are we quicker to jump to threat scenarios when it's a black man than when it's, say, a white woman? To Shelby, it seemed like a vivid possibility that Crutcher, drugged and disoriented, might lunge through the car window to grab a gun, spin towards Shelby, and fire with deadly aim. It was so vivid, so live as a threat that she shot and killed this man whose hands were in the air, who had no gun, no gun at all. Would it have struck her as such a vivid possibility, such a plausible source of fear-- something demanding such immediate, fatal, and irrevocable action--if Crutcher had been a white woman? Also, would empathy and fellow human feeling have been potent in that case, acting to curb fatal mistakes by making them seem more dire?

I'm not talking here about overt racism. I'm not talking about deliberately discounting black lives because they are black. What I'm talking about are unconscious, implicit biases formed in us through social conditioning, biases we don't even know we have and which shape our perceptions in moments of crisis when there isn't time to make more steady, considered judgments.

Did the jury find her not guilty in part because they share the same fears, the same unconscious presuppositions that shape how they envision unfolding events? Did they identify with her and her perspective because they were subject to the same social conditioning? Was it especially easy for them, because of our shared culture, to understand why that unarmed man who was not engaged in hostile or aggressive action could appear to the officer in that moment as a deadly threat?

If this were a freakish case, an unheard-of anomaly in the American landscape, then we might accept the verdict, say "Whatever it was that went wrong, the jury looked at the evidence and decided it wasn't the officer's fault," and then move on with our lives. But we don't have that luxury, because this is not some unheard-of anomaly in American life.

If we accept the verdict, that means we must look beyond the officer to determine what went wrong, to discern what brokenness in our society needs to be fixed so that tragedies like this don't keep happening.

A guilty verdict would have said many things. Among them, it would have said to my black friends watching the trial with trepidation and a thread of hope that this time, in this case, a black life mattered. But a guilty verdict might also have said, "We've found the culprit, the source of the problem. It was this particular woman. The rest of us are off the hook." If we accept the verdict and we accept that black lives really do matter as much as white lives, then we need to ask why this sort of thing keeps happening and what we can do to fix it.

Maybe, in our current world, "not guilty" means "No one's to blame! We're off the hook!" while "guilty" means "That one person is to blame! The rest of us are off the hook!" Maybe there is no way, with the verdicts on offer, for any verdict to ever move us to ask what has gone so horribly wrong and what we can do, what we must do, to change things.

And so we return to my hypothetical verdict, a different kind of "not guilty" verdict: "Not guilty by virtue of the fact that we, society, are collectively to blame for the forces that came together in that tragic moment; not guilty because any one of us, conditioned as we have been conditioned and socialized as we have been socialized, might have done the same thing in that moment. Not guilty because we are all guilty, not guilty in a way that demands collective responsibility. Not guilty in a way that does not erase guilt but demand accountability."

And maybe that "not guilty"verdict needs to be paired with a different kind of guilty verdict: "Guilty by virtue of being an agent of something deeper than the individual, of social wrongs that found expression in this person at this moment but are not isolating to the individual; guilty in a way that does not let others off the hook but recognizes the deep roots of tragic wrongs and demands collective responsibility and broader accountability."

In our individualistic culture, we don't like those kinds of verdicts. Such verdicts would be a call to action, a call to social change. Easier to treat not-guilty verdicts as exonerating not only the individuals but also ourselves, and guilty-verdicts as heaping all the guilt on the bad guys so that the rest of us can feel cleansed.

"F**k Your Breath": Mistakes in Law Enforcement

The other day, another police shooting of a black man made headlines--this one in Tulsa, so it hit close to home.

It was all captured on video: An officer tackled a fleeing suspect, Eric Harris. While he was ordering Harris to roll onto his stomach, a reserve deputy--a volunteer with full law-enforcement authority--decided to subdue Harris with his Taser. Except that he wasn't holding his Taser. He was holding his handgun.

You can barely hear the "sorry" on the video. It's swamped by Harris's cries: "Oh my God, he shot me! He shot me!"

But if you listen closely you will hear that soft "sorry," and it has an oh-shit quality to it. So I'm confident the Taser story is true. The guy didn't mean to fire his gun. It was a mistake.

A fatal one. Harris died later at the hospital.

Another feature of the story isn't included in the video (at least the one I saw and that's linked to above). At the end of that video, Harris can be heard saying, "I'm losing my breath." And then the video ends. But according to reports, a deputy responded to that fading plea with crude disdain: "F**k your breath."

It's impossible not to think about Eric Garner, a black man who died last summer from a police officer's choke hold, whose last words were, "I can't breathe." Was the deputy thinking about Garner? Was his dismissal of Harris's life breath an expression of a deeper and broader disdain?

I don't know. But I can't help but think about lying on the pavement, bleeding, dying, crying out in pain and horror, and hearing my life and human dignity swept away with "F**k your breath." Perhaps they were the last words Harris ever heard, the final punctuation of his life story.

The man who said those words committed no crime. There will be no charges filed. One man shot Harris by mistake, and may face charges. Another sent him into death with a final message: You don't matter.

Both acts trouble me, but the latter strikes me as more inhuman, even if its consequences were less dire.

I don't like to define people by their worst moments. The officer who said to a dying Harris, "F**k your breath," should not be defined by those words. What he said may have been horrible and inhuman. That doesn't mean he was.

I like to think that right now he is mortified. I like to think that he lies awake thinking, "How could I have said that? What must it have been like, to hear those last words just before he died?" Maybe the officer was caught up in the adrenal rush of the moment: the chase, the unexpected gunshot, the furious thought that this would never have happened if the suspect hadn't run.

Maybe it just slipped out. A different kind of mistake.

I've known numerous police officers over the years, all of them good people with a sense of civic responsibility. They recognize the weight of the public trust they've been invested with, and they're committed not to abusing that trust. I can't imagine any of them saying "F**k your breath" to an apprehended suspect dying from an accidental gunshot wound. And I like to think that none of them would ever mistake the firearm in their hand for a Taser, and so fatally shoot a suspect who--whatever his mistakes--didn't deserve to die.

But mistakes happen. Especially when strong negative emotions overtake us, we say and do things we wouldn't do in wiser moments. It was a mistake for Eric Harris to flee the police. So why did he do it? Maybe he was terrified. Maybe he thought, "I might become the next Eric Garner, the next black man killed by the cops." And so he fled. It's not uncommon for fear-driven behavior to actually bring to life the things we fear.

Police work is dangerous, and the moments when police shootings happen are some of the most high-stress, high-adrenalin moments in a police officer's work life. And such moments are the ones when mistakes are more likely to happen. The right kind of training can reduce their likelihood. Did the reserve deputy who mistook his sidearm for a Taser get the same kind of training that a regular officer receives?

I don't know, but the mistake I want to focus on is the other one: the anger-fueled obscenity, the dismissal of a life. I'm going to assume it was a mistake--that is, something said in the heat of the moment and later regretted, as opposed to the calculated, self-righteous dehumanization of a dying man.

My question has to do with the kind of training that reduces mistakes of that kind. In the heat of the moment, with emotions high and blood pounding in our ears, how much more likely are we to dehumanize those we see as our opponents and our enemies? And what kind of training can ensure that even in those moments, we remember the humanity of those who run from us or talk back at us or lash out at us in anger and frustration?

In some cases, the failure to really see the humanity of a suspect might lead to a crushing remark that discounts a human life in its final moments. In other cases, that failure could mean the difference between shooting a suspect and holding fire. Police should fire when lives are at stake--their own, another officer's, a civilian's. But one of the lives at stake in every police shooting is the one who is shot. That life needs to be given its due weight, too. How do we ensure it isn't discounted? How do we ensure that lives aren't cut short or damaged because, in the adrenalin-fueled moment, those lives aren't valued as they should be?

Much of the discussion about this has focused on race--as well it should. There is rampant evidence of subconscious racism operating beneath the surface of our thoughts, influencing our choices without our knowledge. This isn't a police problem. It's been documented in college professors, preschool teachers, Northerners and Southerners, rich and poor, black and white. (Yes, unconscious bias--against blacks--even influences the thinking of blacks through the phenomenon sometimes called internalized racism.)

While there is also overt racism at work in many corners of our society--as the federal investigation into the Ferguson PD makes plain--the bigger issue by far is the covert kind of racial bias that influences the choices of good people without their conscious knowledge. Such racial bias--especially if we aren't aware that it's at work in us--can increase our likelihood of making mistakes of the kind I'm talking about. Mistakes in which we think less of people than they deserve.

Such mistakes are a problem wherever they happen. But they become a bigger problem in high-stress moments. And they become a potentially fatal problem when guns are involved. This means that we will be more likely to see the problem play out in dramatic fashion among law enforcement, precisely because they are in high stress jobs that sometimes require decisions about using lethal force.

This does not mean that police are somehow especially racist. It isn't "their" problem and it isn't "theirs" to fix. Its our problem. It's ours to fix. The social forces that generate implicit bias don't originate in police departments. They come from everywhere. And if we are afraid of the effects that such biases will have on police officers who need to make life and death decisions and may be influenced by unconscious biases, then all of us need to tackle the sweeping social forces that perpetuate these biases.  (We also need to root out overt racism, and not just in police departments.)

But in the meantime, we need to offer resources to police officers who do not want to be influenced by such biases, who are committed to being fair defenders of the public good. The power they're invested with means that if anything, they need to be better than the rest of us when it comes to such things. And the police I know feel the weight of that and want to live up to that weighty trust. What tools and techniques can we offer that will help?

As important as the issue of implicit racial bias may be, it isn't the only source of the mistakes I'm talking about here. Can we imagine the recent events in Tulsa playing out with a white suspect? Of course. The kinds of scenarios that awaken fight-or-flight responses also fuel adversarial, zero-sum thinking: It's him or me. It's us or them. And as soon as another human being becomes one of "them," their humanity begins to be discounted.

This tendency appears to be rooted deeply in our human instincts. And police officers are asked to throw themselves into the very situations that trip these instincts. It's their duty as police officers to step into danger, to confront law-breakers in a way that's inevitably adversarial. Caught up in the emotional intensity of that conflict, the suffering of the adversary might trigger a flush of righteous animosity, spilling out in words like "F**k your breath."

It's only human. But it's a mistake. A tragic moment of staggering inhumanity. The police officers I know want to be the best they can be, even in those moments that have a tendency to evoke our ugliest selves. What kind of training will help?

It should be clear that I'm talking about something very different from the sort of training that will help a reserve deputy keep his head enough to realize that he's holding a handgun rather than a Taser. What I have in mind is something rooted in our capacity to see and respond to humanity in the face of conflicts and emotional forces that have a natural tendency to drive out such responsiveness.

But there are layers of problems here. Police officers have dangerous jobs, and their survival--their ability to make it home to their families--may depend on responses that are rooted in the same fight-or-flight instincts that fuel our propensity to dehumanize. What kind of training can offer the right sort of balance between preserving those essential survival instincts while nurturing our human capacity to see the humanity even in those we are in conflict with?

That's the balancing act we are asking our police officers to perform. And they're being asked to do it in a society where racial biases and other forms of prejudice are being written into our subconscious responses to our environments from an early age.

It should be clear that I don't have pat or ready answers. My aim here, rather, is to ask questions that acknowledge the deep problems and the tragedies we face without drawing good-guy/bad-guy lines, without oversimplifying, without pointing the finger at the other guy.

The Tulsa case is human. It is human because humans make mistakes, and sometimes those mistakes are tragically wrong. It is also inhuman. Sometimes our mistakes lead us to fall short of our human potential, and to see our fellow human beings as less than human. When it comes to wrestling with such oh-so-human inhumanity, we need to be in it together, to ask what we can do to help each other be better than we thought we could be.

And that means we need to stop saying "F**k your breath," even to those who say it to others.