Narratives of Suffering in Cases of Police-Involved Killings
Nadya Kronis
It has become clear since the high profile police-involved killings of Michael Brown in Ferguson, Eric Garner in New York City, and Freddie Gray in Baltimore, that police-involved killings are a deeply divisive national issue. Despite growing interest in understanding the nature and the magnitude of this issue, there is no government database or record of these incidents. Instead, law enforcement agencies self-report police-involved killings and deaths in custody to the FBI. Since I began my internship at the American Civil Liberties Union of Maryland (ACLU-MD) last semester, I have worked nearly exclusively on compiling information on all of the police-involved killings and deaths in police custody in the state of Maryland since 2010 into a database.
As a civil liberties law firm, advocacy group, lobbyist, and member of a larger national organization, the ACLU-MD has a political interest in police reform in Maryland and takes those cases that its attorneys deem violations of constitutional rights and likely to result in legislative reform. Maintaining records and archives on police-involved killings in Maryland is important to the organization for the same reasons that lenient recordkeeping is important to law enforcement—records can be used to construct an alternate narrative and history of police-involved killings and transform an individual lawsuit against a local police department or county into an issue of legal reform. In the absence of official police records of police-involved killings, I look in newspaper archives, crime blogs, county police department press releases, and publically accessible online court records for basic information about police homicides, the circumstances surrounding them, any legal actions that may have been taken by the victims’ families, and the kinds of disciplinary actions that officers face. In the course of compiling this data, I found Veena Das’ analysis of legal and judicial discourses on suffering in mass toxic tort cases extremely relevant to understanding the plights of the families of police homicide victims in the courtroom. Das’ “Suffering, Legitimacy, and Healing: The Bhopal Case”[1] illuminates the ways in which legal and juridical frameworks and discourses obscure human suffering by transforming the victim into the plaintiff, who bears the burden of proving his/her suffering—something that does not translate into the language of the courtroom and is exterior to the logic of legal discourses.
Das describes two orientations towards suffering: an internal orientation and an external one. The internal orientation to suffering operates according to a logic upholding the “creator of the discourse” (in this case, the police and the judiciary) as a just entity and protecting it from accusations of causing random or unjust suffering (Das 139). This logic maintains that suffering is meaningful by shifting the responsibility for suffering onto the sufferer and maintaining that “pain is equal to punishment,” or that the pain of the sufferer is in some sense, a just dessert for their own actions (Das 139). The internal orientation to suffering “masks from the powerless the manner in which their suffering may have been manufactured and distributed by an unjust society” (Das 139). In order to accomplish this masking, the connections between strikingly similar narratives of suffering (in Das, the similar narratives of illness, injury, and death shared by hundreds of thousands of toxic victims following the Bhopal gas leak disaster; in this essay, some of the narratives of fatal police encounters and deaths in custody in Maryland), are obscured through the language and logic of bureaucratic and judicial discourses. The role that sociocultural factors play in the social distribution of certain kinds of suffering are rendered nonexistent in this orientation to suffering. In contrast to the internal orientation, the external orientation to suffering does not attempt to make suffering comprehensible by positing a “meaningful world” in which suffering can be understood as the unfortunate byproduct of individual actions and in which the suffering of a group can be reduced to the sum of its parts, or the sum of each individual’s suffering (Das 140). Instead, the external orientation does away with all conceptions of deserved or just suffering and accepts suffering as meaningless and beyond rationalization.
The project of archiving police-involved killings takes neither a purely internal nor a purely external orientation to violence. Insofar as the goal is to construct a narrative in which many cases of seemingly preventable police-involved killings share many elements in common with one another, such as the victims’ race, socioeconomic status, and mental health history, the archiving project could be understood as taking an external orientation, or as challenging the state on the grounds that many of the killings are unmerited by the actions of the victim, are largely determined by social factors and power relations outside the victims’ control, and are thus violations of their civil rights. However, the archiving project also takes an internal orientation to suffering in the sense that the goal of achieving justice for victims’ families (whether in the form of winning future civil cases and exacting compensation from the state, indicting responsible officers in criminal courts, or passing police reform laws) is to be achieved through courtroom litigation. The ACLU-MD must appeal to the rationalities of this system in order to win lawsuits.
Das considers several ways in which legal discourse takes an internal orientation to suffering by legitimizing the powerful “producer of the discourse” at the expense of the victim, or plaintiff (Das 139). Perhaps the two starkest ways in which legal discourses place the blame for the injury on the sufferer of the injury (or the family seeking compensation) is through the scientific and bureaucratized language of the courtroom and its application to forensic evidence, such as autopsy reports. The case of Robert Ethan Saylor’s death in police custody is a good example of this process. Robert Ethan Saylor, a young man with Downs Syndrome, died during his arrest by Frederick County police officers in a movie theater after refusing to leave the theater in an attempt to watch the movie Zero Dark Thirty for a second time. The Chief Medical Examiner’s Office determined that the death was a homicide by asphyxia. In the course of an internal police investigation, a grand jury investigation resulting in no indictment, a civil trial, and a second grand jury investigation failing to indict officers, it became evident that a medical homicide is not necessarily a legal homicide.
In her study of the Bhopal gas leak case (a class action civil trial), Das observes that in the course of the trial “language came to be deployed as an end in itself, creating a discourse of which the function was to dissolve the concrete and existential reality of suffering victims” (Das 143). Likewise, during Robert Ethan Saylor’s trial, language was used in such a way as to make his injuries verbal, or possible to fix, dissect, and present to the jury using words. A major similarity between the Bhopal case and the Robert Ethan Saylor case is the common use of what Das calls an “offensive biological argument” made by the defense (Das 155). This argument makes sense of the incongruence between forensic evidence and the details of the defense’s version of the incident by claiming that the deceased or injured was suffering from a pre-existing condition and that it was this condition that was ultimately responsible for his/her death. In the case of the Bhopal gas leak, the defense claimed that it was impossible to retrospectively prove that the thousands of deceased and injured individuals had not suffered from pre-existing lung conditions, the symptoms of which just happened to resemble the effects of inhalation of methyl isocyanate, the toxic gas that they were exposed to, particularly because they were poor citizens of a developing nation and likely exposed to a variety of environmental and occupational hazards throughout their lives. Similarly, the Frederick County State’s Attorney defending the county’s police officers in criminal court supported police officers’ claims that obesity and Downs Syndrome made Saylor more susceptible to injury and death. It is worth noting that the obesity argument was made by the defense in the highly publicized chokehold death of Eric Garner, in whose case a New York City grand jury also failed to indict officers. The links between Downs Syndrome and Saylor’s death (which the medical examiner attributed to positional asphyxia, or being in a position where he was unable to breathe, and a fractured larynx) remain unclear. [2]
Thus, the “offensive biological argument” removes responsibility for the homicide from the police, who are presented as lawfully doing their jobs, and displaces it onto the victim. In Saylor’s case, given the victim’s disability, the blame may have been placed entirely on pre-existing conditions and regrettable circumstances, but in the cases that I encountered in which the victims were otherwise healthy and arrested on drug-related charges, the blame was displaced entirely onto them via similarly structured offensive biological arguments. One illustrative example is that of Anthony Anderson, a black Baltimore City man who police claimed had died in custody during a routine drug arrest after choking on pills that he stuffed into his mouth in order to destroy the evidence. Police altered their statement prior to the release of the results of the toxicology report and autopsy, claiming that he had actually choked on pills during a standard police takedown procedure. The results of the autopsy determined the cause of death to be massive internal bleeding from blunt force injuries, a ruptured spleen, and multiple fractured ribs. In this case, the victim’s family did not press charges and Baltimore's former state's prosecutor declined to press charges against the city, claiming that homicide is not always a crime, that officers acted in accordance with police guidelines permitting the use of force when someone is “not complying with police orders” or “may be trying to destroy evidence.”[3] The cause of death determined by the police investigation and the state prosecutor was identified as the victim’s pre-existing enlarged spleen. The legal argument employed by the prosecutor in Anthony Anderson’s case is nearly identical to what Das describes as the lynchpin of the defense’s arguments in the Bhopal case, or that
“because human beings were not like laboratory animals…the toxic insult to their bodies…could not be decisively linked to the diseases encountered. One might even rephrase this to mean that those whose lives were already wasted by poverty and disease could scarcely claim just compensation merely on account of this further exposure to industrial disaster. This professional transformation of the experience of suffering, guilefully encoded in the language of science, ended up blaming the victim for his suffering” (Das 155-156).
Likewise, the in-custody deaths of Robert Ethan Saylor and Anthony Anderson “could not be decisively linked” to their injuries, and the blame was displaced onto the deceased victims. In all of these cases, the language of science seems to have been embedded within and reworked by the dominant legal discourse, which in cases of police brutality, is also the discourse of the state.
It is unsettling to find that the legal discourses informing the decision of an Indian court in 1985 not to compensate those affected by an event considered to be the worst industrial disaster in world history are present and active in the contemporary American justice system. Das’ analysis of how the “bureaucratic rationality” of legal and judicial discourses resists all attempts to transform “private trouble into public issue” is a powerful framework for studying the legal aftermath of police-involved killings and deaths in police custody (Das 142). From what I understand of the ACLU-MD’s objectives, the organization has two interrelated goals: the first is to achieve justice in the form of compensation for their current clients and the second is to build a larger narrative about the lack of accountability for police homicides on the part of police departments and the state, and to use this narrative to enact legislative reform. Das writes that, “even when a story is completed, the residue may become an important resource in memory for reopening the narrative”—this is part of the power and potential of keeping records (Das 171).
[1] Das, Veena, and Maya Unnithan-Kumar. "Suffering, Legitimacy, and Healing The Bhopal Case." Illness and the Environment: A Reader in Contested Medicine (2000): 270.
[2] El, Tamara. "MD Grand Jury Refuses Indictment Of Cop Who Killed Man With Down Syndrome Because He Wouldn't Leave Movie." The Source. December 8, 2014. Accessed February 26, 2015. http://thesource.com/2014/12/08/md-grand-jury-refuses-indictment-of-cop-who-killed-man-with-down-syndrome-who-wouldnt-leave-movie/.
[3] George, Justin. "Bernstein Hits Airwaves, Defends Decision in Anthony Anderson Death." Baltimore Sun. January 28, 2013. Accessed February 26, 2015. http://articles.baltimoresun.com/2013-01-28/news/bal-bernstein-hits-airwaves-defends-decision-in-anthony-anderson-death-20130128_1_bernstein-drug-arrest-baltimore-police.