By Joe Nalven
A quarter-century ago, I prosecuted a case against the police. My client, a Black man, was severely bitten by a police dog.
Because the case was ambiguous, it is a better test of racial bias that if the facts were clear cut. The “facts” were alternative because they rested on an understanding of the context and the perceptions of those involved as well as those of the jury.
Read the facts — as I remember them. Then vote as if you were on the jury whether the police used unreasonable force. Consider why you voted that way. What was the nature of your bias?
The Arrest of Reginald Morris
Late at night, a police car drove by the parking lot behind Al’s Print Shop in North Park. They saw a Black man, who we will call Reginald Morris, reaching into a car. The police approached Morris and he darted into Al’s Print Shop.
A K-9 unit was called and four police officers entered into the building. They found Morris in a back room. He was ordered to stand down but he reached for something and the police dog was unleashed. Morris was severely bitten and taken to a hospital.
The criminal case against Morris ended in an acquittal. However, the firm I worked for decided to take up civil litigation against the police officers. We pursued Morris’ claim based on the allegation that the police used unreasonable force in apprehending him. The dog bites were severe.
I was chosen by the firm to handle the case. It was my first, and only, jury trial. The firm saw the difficulty in winning a plaintiff’s case against the police. The San Diego County lawyer for the police argued that the policy followed the use of force procedure allowed for a case such as this.
A psychologist served as an expert witness for the police. He had administered a Minnesota Multiphasic Personality Inventory test and noted that Morris’ responses were high on the lie scale. But the MMPI test has the potential to be racially biased. Was Morris more prone to lying or do Blacks interpret the questions differently?
In retrospect, the case turned more on the context of Morris’ apprehension rather than the lawyers, the psychologist or existing policy.
The police later discovered that the owner of the print shop had given Morris permission to sleep there at night. The apprehension took place in a small room in the back. Morris had hidden behind some boxes with a camera slung around his neck. The room was dark with little light entering into it.
When the four police officers crowded into the room, Morris heard them say, “get him” to the dog. But the dog was only trained in German. Morris had reached out for his drawings, but the police couldn’t tell what he was reaching for. That was the point when the dog was ordered to control Morris. The result was severe dog bites to the back of his legs.
The situation could best be described as a pressure cooker with both Morris and the police officers on high alert and confused by each other’s actions. Three of the police officers testified that they were startled in the small room and saw movement towards something. One officer of Samoan heritage thought the order to the dog was uncalled for. Adrenaline ruled the moment.
The judge noted that the jury pool for selecting the jury had no Blacks in it. He asked if we wanted a new pool before picking those to be seated. I spoke with Morris. He said he had no problems with the pool. The final panel had 9 whites, two Hispanics and one Filipino. Qualified immunity did not enter into the verdict. The jury found no liability against the police officers on the facts. The nine white jurors voted against liability while the non-white jurors voted for liability.
After the trial, the jurors were questioned. The white jurors found that both the police and Morris were telling the truth. Because the room was small, the lighting minimal, and the actions fast, the police could reasonably assume that Morris was reaching for a weapon — they could not see the camera or the drawings. Morris could reasonably be frightened, reaching for what was his.
These jurors saw themselves at a tipping point of 50-50 and unable to reach a 51% likelihood that the police were unreasonable. The non-white jurors were able to cross that threshold looking to the one dissenting police officer and to Morris’ polite and non-threatening demeanor. He was slight of build and rode his bicycle from North Park to the downtown courthouse every day of the trial.
How Would You Vote as a Juror?
Based on the context of Morris’ apprehension, how would you have voted? Which facts would you find determining your vote? Do you have a bias that would lead you to interpret these facts in one direction or another?
Your answers take us into the murkiness of judgment — for the police and the community. Police can be trained and are expected to be better prepared than the average situation. But there is a limit to the human condition — when there are startle effects and pressure cooker situations. Those are also some of the limits to legislating best practices to policing.
Joe Nalven is a former associate director of the Institute for Regional Studies of the Californias at San Diego State University.
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