By Osagie K. Obasogie
One idea that distinguishes public health from medicine and other health sciences is the social determinants of health. This concept emphasizes the environmental conditions that give rise to health outcomes — poverty, lack of access to resources, exposures to contaminants, etc. — rather than locating disease solely in biological or physiological processes bounded by human bodies. Following this lead, public health interventions are often focused on community practices that can improve the spaces in which people live. The public health approach is refreshingly simple: healthy communities and environments produce healthy people.
A public health framework for understanding how police and policing impact community health outcomes is necessary as we continue to have wide-ranging conversations about excessive use of force. Improving the health of local communities involves rethinking the laws that govern how police interact with the people they serve.
As I wrote in the Washington Post earlier this year, police violence doesn’t just harm individual victims. It is a plague on entire communities that impacts physical, emotional, and psychological well-being. Scholars have made important steps in thinking about and assessing police violence as a public health problem, and much more work can be done to fully understand the cascading effects that it has on communities.
Yet, just as public health teaches us that there are social determinants of health that transcend individual pathologies, there are also determinants that precipitate police use of force. Most of the conversation surrounding race and police use of force presumes that the problem largely results from “bad apples,” or individual officers who harbor implicit or explicit biases that shape their decision-making when engaging communities of color.
While bias among police officers continues to be a significant problem, other issues also need to be addressed. Much of my recent work examines the legal determinants of police violence. In other words, how does law “determine” or structure an individual police officer’s decision to use force that might not be warranted by the situation?
Part of the answer to this question revolves around the Supreme Court’s Graham v. Connor decision in 1989. Before this case, federal courts considered a variety of legal claims by victims of police violence seeking justice after their constitutional rights were violated. However, the Graham court held for the first time that all excessive force claims should be assessed under a Fourth Amendment reasonableness standard:
Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right “to be secure in their persons . . . against unreasonable . . . seizures.” . . . As in other Fourth Amendment contexts, [] the reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. 490 U.S. 386, 395, 397 (1989)
This was a dramatic change for victims of police excessive force who brought §1983 constitutional tort actions against officers. Stemming from post-Reconstruction legislation (the Civil Rights Act of 1871, also known as the Ku Klux Klan Act), §1983 was specifically designed to give federal courts the ability to hear plaintiffs’ claims when state courts were all too often indifferent to the racial terror being inflicted upon formerly enslaved people — many times with the assistance of law enforcement. Although §1983 remained dormant and largely unused until the 1960s, its creation of a private cause of action to enforce constitutional rights has become a cornerstone mechanism in trying to hold police accountable.
Yet, the Graham decision transformed §1983 excessive force litigation into a limited Fourth Amendment determination of whether force by an individual officer on an individual person was excessive — an inquiry that brackets the long history of police brutality against racial minorities and ignores the group dynamics that often drive police use of force. Race and racism are pushed to the margins when they ought to be centered.
To be sure, §1983 litigation was not easy for plaintiffs before Graham. Federal courts do not have a track record of sympathy towards victims of police abuse. But the Graham decision locked in a colorblind perspective about race and use of force that made it even more difficult to have a legal conversation about the structural aspects of police violence. All that matters post-Graham is individuals, in terms of whether the behavior of particular officers was “reasonable” in a particular moment. This emphasis on individual actions, outside of history and social context, makes these structural determinants of police use of force invisible.
Moreover, as Zach Newman and I described in the Cornell Law Review, federal courts often defer to police understandings of “reasonable” (as described in local use of force policies) rather than developing their own interpretations of what the constitutional standard requires. This deference creates a situation where the police — the people meant to have their actions regulated by Fourth Amendment standards — end up defining what the standard means.
Thus, the Graham decision’s reframing of the constitutional standard regarding police use of force to focus on individual dynamics, along with federal courts’ pattern of deference to police departments’ understanding of this standard, encourages the excessive use of force and discourages accountability. This makes law a key determinant of poor health outcomes for many communities.
This is the legal backdrop that allowed officers in Louisville to barge into Breonna Taylor’s apartment in the middle of the night while shooting indiscriminately. It is what encouraged officers in Vallejo, California, to shoot at Willie McCoy 55 times as he slept in his car. And it is what led Minneapolis police officer Derek Chauvin to place his knee on George Floyd’s neck for nine minutes while he called for his mother and pleaded for his life.
When federal courts effectively bar history and context from legal assessments of the lawfulness of police use of force and, furthermore, allow the police to determine which of their actions are unlawful, there can be no justice. There can be no accountability. Changing this situation requires much more than calls for reform or to defund the police. In order to save lives and improve health outcomes, we must fundamentally change the laws that serve as determinants for police use of force.
Osagie K. Obasogie is the Haas Distinguished Chair and Professor of Bioethics at the University of California, Berkeley, in the Joint Medical Program and School of Public Health.
