Atlantic Monthly Contributors's Blog, page 358

Trump and the Dangers of Passionate Politics

Last week, two men in Boston allegedly beat a Hispanic homeless man. Afterward, one of the two brothers told the police, “Donald Trump was right, all of these illegals need to be deported.”  Trump’s response?  “I think that would be a shame,” he said, adding, “I will say, the people that are following me are very passionate. They love this country. They want this country to be great again. But they are very passionate. I will say that."

And that showed what Trump is really about.  His politics depend on the strategic manipulation of what America’s Founding Fathers called “the passions”— emotions that, when stoked, cause us to literally lose our minds. And that’s perilous not only for the fragile state of U.S. politics today, but for Trump’s political legacy.

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Trump has described Mexican immigrants as rapists, called Martin O’Malley a “little, weak, pathetic baby,” and said that Fox anchor Megyn Kelly must have had “blood coming out of her wherever” when she questioned him during the first GOP debate.

His statements are completely consistent with his approach to both his business and entertainment careers, which was to connect with people’s guts at the expense of their reason. In his 1987 book, The Art of the Deal, Trump explained his modus operandi: “The final key to the way I promote is bravado. I play to people’s fantasies.  People may not always think big themselves, but they can still get very excited by those who do.  That’s why a little hyperbole never hurts.  People want to believe that something is the biggest and the greatest and the most spectacular.”

There has been a tremendous amount of discussion about the “anger”and “frustration”of Trump’s supporters. But it’s not just anger. Tapping all of the passions, including avarice and lust, is the unifying theme of his career. And therein lies the problem.

People have been wrestling with the problem of the passions in politics as far back as Plato and Aristotle. Plato described three parts of the soul—the appetites (like lust), the spirited (military courage), and reason. Reason was a charioteer trying to control the “dark steed” of the passions. The only way to control the appetites was to force the horse to the ground and whip him until he bled.

It’s a violent metaphor, but the ancient diagram has proven stable, continuing today in modern brain science, and even the Pixar movie Inside Out, which tracks the teenage protagonist’s struggle to understand and control her inner impulses.

The problem of the passions in politics was central to the thinking of America’s founders, as well. Take James Madison, the father of the Constitution. As a boy studying with his tutor Donald Robertson, Madison first learned the idea that “our passions are like Torrents which may be diverted, but not obstructed.”

In college, Madison was taught by the great Scottish cleric John Witherspoon that passions originated in an object of intense desire. Passions of love included admiration, desire, and delight. Passions of hatred were envy, malice, rage, and revenge. Most important however was the “great and real” distinction between selfish and benevolent passions. A benevolent passion, Witherspoon taught, came from the happiness of others. A selfish passion stemmed from gratification (like Donald Trump’s stroking of his own ego)—and was the most dangerous to a republic.

The passions are slippery for anyone seeking to control them, particularly in democracies with free speech. But that doesn’t mean they can’t be tamed.

One reason the framers designed the Electoral College was so that the electors could put a stop to a candidate who rose to power by playing to the people’s prejudices.

America’s Founders sought to govern the passions. In Federalist No. 10, Madison recognized the danger of faction, which would “kindle ... unfriendly passions.”  That required, in turn, checks and balances and institutions like the Senate to “refine and enlarge the public views.” One reason the framers designed the Electoral College, in fact, was so that the electors could put a stop to a candidate who rose to power by playing to the people’s prejudices at the expense of deliberation and education.  Over the decades, these ideas became deeply entrenched in American political culture, leading Alexis de Tocqueville to praise American mores—“habits of heart”—that undergird self-governing citizenship. This constitutionalism helped American democracy thrive, and serves to check demagogues.

An optimistic read would be that those cultural factors are contributing to Trump’s apparent ceiling in the polls. Although he has found a base of Republicans who relish the out-of-control, others oppose him, many for that reason.

So what’s the real danger of the passions in politics today? After all, the U.S. has plenty of checks and balances, and a far more inclusive democracy than at its founding.

Think, for a moment, of former Italian Prime Minister Silvio Berlusconi—at least at first glance, a startlingly similar figure to Donald Trump. Berlusconi became the country’s richest man by creating Italian television shows that flaunted near-naked bodies, and stories of lust and betrayal.

Even as prime minister, Berlusconi was rather transparently prisoner to these same passions, holding “bunga bunga” parties, and otherwise launching a debauched festival of greed, through a political culture of bribery, corruption, and tax fraud.

The danger with Trump would seem to be that, like Berlusconi, he would be hoist by his own petard, self-destructing precisely through the agent of his rise, and dragging the rest of us with him.

But consider an alternative hypothesis: Trump himself isn’t a creature of the passions; he’s instead strategically employing them as a means to his own ends.

Take greed. He’s been cited many times for what now has become a chestnut: “The point is, you can’t be too greedy.” He’s also come to be known for his braggadocio about his net worth during his 2016 run. But his approach to money is usually much more nuanced and self aware. In The Art of the Deal, he writes, “Money was never a big motivation for me, except as a way to keep score. The real excitement is playing the game.”

The same could be said of virtually every other element of the Trump show: Trump is playing his base through the passions. That’s why, on every supposed “gaffe,” he just doubles down, befuddling the pundit class, but tapping into his “very passionate” base.

The real danger is not that he will become Berlusconi-esque. It’s that he will further erode the political institutions necessary to getting things done. Every great challenge facing the country will require complex negotiations between different parties with a faith in the process and subject matter knowledge. And every unruly passion he stokes, from lust to outright fury, is another small explosion under America’s already-rickety policymaking foundation.

He might also consider episodes from the last century that show a politics of the passions getting the better of the politician.

In 1950, for instance, Wisconsin Senator Joseph McCarthy opportunistically chose to stoke the public’s anger at Communists by using his House subcommittee in a crusade later famously characterized, by Arthur Miller in The Crucible, as a witch hunt. McCarthy’s reign was dangerous, but it lasted only three years, and it was attorney Joseph Welch’s heartfelt cri de Coeur during the Army-McCarthy hearings in 1954—“Have you no sense of decency, sir?”—that rang the loudest. His fall was even swifter than his rise.

While Trump revels in support, he could do a lot of damage. If Trump wants to be successful within the context of American history and its political culture, he should start by replacing the exploitation of the passions with a layer of statesmanship. That would not only help our politics, it would be in his own best interest. For in the end, Americans can be quite unforgiving to the politicians who prey on their prejudices.

Is Carly Fiorina Better Off Being Left Out?

Carly Fiorina’s strong performance in the B-list Republican debate, and an ensuing bump in the polls, quickly gave rise to a widespread assumption that the GOP’s lone woman candidate had earned her place alongside the top-tier contenders during the next primary debate.

That assumption, it turns out, was premature. Fiorina is once again at risk of being relegated to the undercard at the CNN-Reagan Library debate in September, but not because her momentum has already petered out. The former HP chief is holding at around seventh place in recent national polls (safely within the top 10 cut-off), and she’s in an even stronger position in the early voting states of Iowa and New Hampshire. Her problem is that, according to its published criteria, CNN plans to use an average of qualifying polls from a full two months before the September debate, including several that were taken before the first debate, when Fiorina was polling around 1 percent. Therefore, unless she rises even faster in the next two weeks, or a bunch of new surveys come out right before the deadline, she is in danger of missing the cut.

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Fiorina’s campaign is, predictably, protesting. “Despite being solidly in the top 10 by every measure, the political establishment is still rigging the game to keep Carly off the main debate stage next month,” wrote Sarah Isgur Flores, her deputy campaign manager, in a polling analysis sent to reporters and posted on Medium on Wednesday.

But is Fiorina better off by being left out?

Yes, the main debate would give her an audience of millions more potential voters. And sure, a candidate can’t expect to break into the top tier without, at some point, competing against the party’s premier presidential hopefuls. And ok, fine, who in their right mind would want to waste an hour trying to fend off the charisma-sapping duo of George Pataki and Jim Gilmore when they could go toe-to-toe with His Excellency, The Donald? (Don’t answer that.)

“Despite being solidly in the top 10 by every measure, the political establishment is still rigging the game to keep Carly off the main debate stage next month.”

The more serious argument is that if nothing else is clear this season, it’s that the outsiders are winning. There’s Trump, of course, who is somehow expanding his lead atop the polls despite all manner of impolitic remarks. Fiorina and Ben Carson have quietly moved up in recent weeks, and, on the Democratic side, Bernie Sanders is giving Hillary Clinton a surprisingly strong challenge. Fiorina is not a natural candidate of grievance; her on-air style is measured and even-toned, and her strong delivery in the Fox News “Happy Hour” debate stood out on a stage of lesser communicators, probably much more so than if she was debating against the more soundbite-friendly Trump, Marco Rubio, Ted Cruz, and Chris Christie.

Yet the mere possibility of Fiorina’s unfair exclusion from the next GOP debate gives her an opportunity to play against two pillars of the establishment—the media and the Republican National Committee—in a manner that would be laughed off as a loser’s lament if she were still registering at 1 percent in the polls. In her missive on Wednesday, Flores mentioned the party “establishment” four times.

It will be interesting to see if CNN has no qualms excluding someone who is polling in the top 5 in Iowa and New Hampshire, in second place in multiple states, and well within the top 10 nationally. And it will be disappointing if Reince Priebus and the Republican establishment stand by and let a TV network keep Carly off the main stage…again.

Whether they say it publicly or not, it’s clear that the RNC would want to see Fiorina in the primetime debate next month. There’s the obvious matter of wanting to promote their only major woman candidate after years of battling Democrats attacks of a GOP “war on women.” And in a field of so many candidates, there seems to be little point in creating debate-entry criteria that can’t adequately account for shifts in momentum over a month’s time. At the same time, the RNC would be wary of the awkwardness that would come if it bent the rules just to accommodate Fiorina.

So far, CNN is sticking by its criteria, which Priebus publicly backed when they were announced in May. “Federal Election Commission guidelines make it clear that these criteria cannot be changed after they have been published,” the network’s spokesperson said Wednesday. “We believe that our approach is a fair and effective way to deal with the highest number of candidates we have ever encountered.” (The RNC did not comment.)

Fiorina’s improved standing gives her a buffer if she does miss out on the main stage once more. She’d get a decent round of media attention (and surely, plenty of air time on Fox) just for being excluded. And if she simply maintains her standing, she’ll have a better chance of making the next debate, which will occur in late October, closer to when the voting actually starts. As Herman Cain, Michele Bachmann, and Rick Perry learned the hard way in 2012, surging in the polls is nice, but there’s such a thing as peaking too early.

None of this is to say Fiorina would—or should—reject an invitation to the CNN debate if she gets one. She shouldn’t, and she won’t. But in an outsider’s campaign, exclusion isn’t the worst thing—being kept out might just be the easiest way to stand out.

When Should Cops Be Able to Use Deadly Force?

On July 1, 2012, Milton Hall, a homeless man with a history of mental illness, stole a cup of coffee from a convenience store in Saginaw, Michigan. The store’s clerk called 911. When an officer arrived, Hall produced a knife with a three-inch blade and threatened her with it. She called for backup and seven other officers soon joined her, one of them with a police dog. They formed an arc around Hall and aimed their firearms—pistols and a rifle—at him. The standoff continued for several minutes, with the officers repeatedly asking Hall to put the knife down and Hall repeatedly refusing. Finally, Hall, still wielding his knife, began to walk toward the police dog and the K9 officer. After he had taken a few steps—three, by my count, as I watch video footage from a patrol car’s dashboard camera and available on YouTube—the officers shot Hall to death in a volley of 47 bullets.

Whether a person is dangerous, and how dangerous he is, is rarely easy to determine. Combine that uncertainty with a low tolerance for risk on the part of both officers and the use-of-force laws that govern their actions, and the result is speculative police killings: cases in which people are made to forfeit their lives on the basis of little more than guesswork about what they might do.

Such deaths are intolerable. Debates over police conduct often pit the right against the left, but the conviction that no one should die on the basis of a hunch should be trans-partisan. It is also wise to feel a certain mistrust of government power exerted against the citizen; a certain fear that agents of the state may overstep their authority or use well-intentioned but destructive zeal; a certain expectation that the legal institutions to which they are accountable may fail to hold them to account; and a certain recognition that rules defining the rights of citizens and the scope of government power against them may be vague or elastic in ways that can harm the individual. That the individuals at issue here have often violated the law may make them harder to sympathize with, but for this very reason it is proper to wonder whether the insecurity of their rights is too readily tolerated. After more than a year of debate and protest and occasional riots in response to particular police killings, it would be well to take a scrutinizing look at use-of-force rules themselves.

“Maybe. Who knows?” Is that reason enough to have ended someone’s life?

There is a moral logic common to such rules. Two requirements must be met for a use of force to be justified: a “proportionality” requirement and a “necessity” requirement. The proportionality requirement, as Paul H. Robinson, an expert on criminal law at the University of Pennsylvania Law School, summed it up for me, concerns whether a person posed a danger to which the force used against him was a commensurate response. For deadly force, the usual standard is that someone must present a threat of death or serious bodily injury. The necessity requirement concerns whether, at the time when deadly force was used, it was truly needed to prevent those threats from being realized. If someone makes a death threat, for example, he has satisfied the proportionality requirement, but that doesn’t mean the police may shoot him dead at once. Deadly force becomes permissible only when and if it is needed to keep him from killing.

As an abstraction, this makes sense. In practice, it can be vexingly indeterminate. A use of deadly force is, after all, preventative and the public’s judgment of it retrospective. What would definitely show it to have been justified is an affirmative answer to the question, “If deadly force had not been used against this person, would he have gone on to inflict death or serious injury?” And the answer to that question is unknowable. Sometimes the public may feel confident enough saying yes. But suppose it says, “Maybe. Who knows?” Is that reason enough to have ended someone’s life?

​* * *

When Michael T. Slager, a police officer in North Charleston, South Carolina, shot Walter Scott dead, there was universal agreement that the act was an outrage. Scott had been unarmed and running away from Slager when Slager fired eight rounds at Scott’s back. No one could have argued that using deadly force had been either proportional or necessary. But Scott’s case was perhaps uncommonly clear-cut. The killing of Milton Hall illustrates the ambiguities that can arise in applying a use-of-force standard, and the ways in which those ambiguities can lead to horrifying results.

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By brandishing a knife, refusing to put it down, and approaching the officers, Hall satisfied the proportionality requirement. His words during the standoff—e.g., “Some motherfucker is gonna die today, and it’s gonna be me or it’s gonna be you”—further established that he posed a threat of death or serious injury. And yet the officers had two means less deadly than firearms—the police dog and their Tasers—available to stop him, and they did not try to use them. So was lethal force truly necessary?

I asked Chris Gebhardt, a former lieutenant with the Metropolitan Police Department in Washington, D.C., and later a SWAT-team leader in Utah, what he thought. “The officers had a K9 there,” Gebhardt answered. “Release the dog and let it do its job.” By choosing instead to open fire, he explained, “they have basically said that a dog’s life is more valuable than a human’s.” Indeed, in the moments immediately before his death, Hall seems mainly to have been confronting the dog. Michael Thomas, Saginaw County prosecutor at the time, conceded as much when he announced at a press conference that he would not file charges against the officers. (Hall’s mother later sued the city and the officers for wrongful death and received a settlement of $725,000.) “This dog handler and this dog in particular seem to be what [Hall] was directing his attention to,” Thomas said.

Thomas emphasized that, according to two witnesses, “the police dog and the police-dog handler” were two to three feet away from Hall at the closest point. But they could not have been equidistant from him, since the dog stood between the handler and Hall. As the video makes apparent, the handler began to walk the dog backward as Hall approached, maintaining his distance from Hall; and when the shots were fired, Hall was clearly more than two or three feet away from the dog. Thomas’s failure to acknowledge any of these facts supports Gebhardt’s observation that the dog’s life was considered more valuable than Hall’s. (Thomas did not respond to an email or a voice message requesting comment.)

As for Tasers, the officers had them and even considered using them: Thomas noted at his press conference that the camera and audio recorder on one Taser had been activated during the standoff, and he said that one of the officers had not fired any rounds because he was moving his hand from his Taser to his firearm when the other officers began to shoot.

Still from patrol-car dashcam footage moments before officers fire at Milton Hall (Michigan ACLU)

It would be imprudent to lay down a rule that an officer being confronted by a knife-wielding individual must always use a Taser or release a dog before shooting a firearm. Tasers in particular don’t always stop their targets, as Thomas emphasized, and someone sprinting at you with a knife can cover a lot of ground—21 feet, according to an influential police study—in the time it takes to draw a pistol. But the officers had their pistols drawn already. Hall was not sprinting, but walking normally. And the officers need not have waited until Hall approached them to try to subdue him with less deadly means. Here is Gebhardt again: “Critical thinking . . . would have caused a two-man team to approach him. One with a Taser and another with lethal cover. Get close enough to use the Taser. If he approaches with the knife, then shoot.”

Thomas’s reasoning focuses on two details almost to the exclusion of all others: Hall’s possession of a knife and the officers’ lack of certainty that non-lethal means would have stopped Hall. If that is all you look at, and if you have little tolerance for risk, then it’s easy to think that the officers needed to kill Hall. But the more you look at the overall context, and the more you reflect on how the officers might have approached the situation instead, the less obvious that necessity looks.

​* * *

This illustrates something important about judging uses of deadly force: It requires attending to the totality of circumstances. The Supreme Court has emphasized this point. Uses of force are considered seizures of someone’s person and so are subject to the Fourth Amendment’s prohibition of unreasonable searches and seizures. And the test of whether a use of force is reasonable, the Court said in its 1989 Graham v. Connor decision, “is not capable of precise definition or mechanical application.” Instead, “its proper application requires careful attention to the facts and circumstances of each particular case.” The more panoramic the view, the less risk that isolated details will skew judgments.

Nevertheless, the Court had already set up a mechanical test prior to deciding Graham v. Connor. In 1985, Tennessee v. Garner posed the questions whether and when a police officer may use lethal force to seize a fleeing suspect. Under common law, officers had been allowed deadly force against any fleeing felon if using it was necessary to prevent his escape. Garner involved a case in which a police officer acting on that standard—which had been enshrined in Tennessee’s statues—fatally shot a fleeing, unarmed burglar in the back of the head as the burglar climbed a fence. The Court’s majority noted that the common-law standard had developed in times when police officers did not carry firearms and deadly force implied hand-to-hand struggle. It had also developed when almost all felonies were capital offenses. In the modern context, the Court argued, “it is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”

Notice where the Court placed the word “immediate.” It appears before “threat to the officer” but not before “threat to others.” That is not a result of careless composition. It captures the idea that some suspects pose an ongoing danger even if, in the moment of their escape, they are not threatening anyone in some specific way. The opinion continues:

When the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

In such cases, the police do not need any specific reason to think that the suspect will threaten death or injury in the future. What he has already done is taken as reason enough to prefer his death to his escape. The problem with this is that there is no reliable way to predict someone’s future actions unless he has manifested an intention to do something. A fleeing suspect has manifested an intention to flee. The probability that he in particular—as opposed to a hypothetical average individual who acts according to a statistical mean—will commit a violent crime is unknowable. The Court’s rule, in short, is entirely speculative. And that should raise doubts about whether it is a reasonable way to define proportionality.

​* * *

On September 10, 2014, Darrien Hunt, who had a history of emotional problems and had shown signs of mental illness, was seen walking with a samurai sword down a busy street in Saratoga Springs, Utah. According to his family, he carried the sword as part of a costume, and under Utah law he had a right to carry any sharp-edged weapon he wished.

A concerned observer called 911, and two police officers approached Hunt. The conversation started off friendly, but after one of the officers repeatedly asked Hunt to put down his sword, Hunt either took a swipe at the officers or held the sword over his head and jumped at them. (The officers gave investigators conflicting accounts of what Hunt did with his sword and which officer he was moving toward when he did it.) The officers responded by shooting at Hunt, who ran away carrying the sword. The officers ran after him, and one of them shot Hunt dead from behind.

“There was no way around it. I couldn’t keep letting him run around with a frickin’ sword.”

Hunt’s family is suing the officers and the city of Saratoga Springs. Many facts about the incident are contested—in particular, whether Hunt had already dropped his sword, and whether he was tripping or had fallen down, when the fatal shots were fired. Witness testimony is inconsistent, and lawyers for both sides declined to answer questions about the ambiguities. But, assuming for the sake of argument that something like the officers’ accounts is accurate, what difference should it have made that Hunt was still on his feet and carrying a sword when he died?

Utah’s relevant statutes apply with exactness the rules in Tennessee v. Garner, but, interestingly, not even the officers’ own attorney is defending them on the grounds that Hunt had threatened them with a weapon and so satisfied the Garner standard. In a press statement, she said that, “had Hunt dropped the sword before fleeing, the officers would have continued chasing him on foot” rather than shooting him. Thus she tacitly conceded that it matters whether Hunt was still armed when he died.

Others likewise stressed the imminence of the threat that Hunt allegedly posed. Jeff Buhman, the Utah County prosecutor who declined to file charges against the officers, said: “I don’t find it reasonable to require that [officers] permit a person who is armed and has most immediately attempted to wound or kill police officers to escape into a presently populated retail area.” (Hunt was fleeing in the direction of a Walmart.) And Matthew Schauerhamer, the officer who killed Hunt, explained to investigators that “there was no way around it. I couldn’t keep letting him run around with a frickin’ sword.” Hunt might “hack the first person he saw.”

Some police departments have made imminence central to their use-of-deadly-force policies, thereby setting a stricter standard than Garner does. The New York Police Department’s patrol guide, for example, says that “police officers shall not discharge their firearms to subdue a fleeing felon who presents no threat of imminent death or serious physical injury to themselves or another person present.” Police policy in Philadelphia is similar.

But what does “imminent” mean? Something very expansive, it would seem, for those who think the shooting of Hunt justified. Hunt had not threatened anyone besides the officers, as the officers knew, and he had given no indication of what he would do after he fled. The officers’ rationale amounted to: “This guy could do anything.” Implicitly, such an understanding of imminence tightens the Garner standard only by requiring that the fleeing suspect be armed, and perhaps also that his initial crime immediately precede his flight.

Gebhardt, the former SWAT-team leader, has reviewed evidence from the shooting at the Hunt family’s request. (He does not do such work commercially and is not paid as an expert witness.) He interprets the idea of imminence very differently. “Once [Hunt] starts running, I see no justification for shooting him,” he says. “Darrien lashed out at authority,” but “he [had been] seen walking in the area with the sword and he didn’t attack anyone. It was the officer who thought Darrien was going to do others harm.” The shooting would have been justified, Gebhardt implies, only if Hunt had shown an intention to harm the public.

This points to a basic and unavoidable dilemma: whether to require specific evidence of someone’s violent intentions before allowing the use of lethal force, or, alternatively, to treat past violent conduct as reason enough. Call these the restrictive and the permissive approaches. The restrictive approach makes it all but certain that among those the police let escape will be some who go on to inflict harm in ways that could not have been reliably predicted. The permissive approach makes it all but certain that among those the police kill will be some who would not have gone on to inflict any harm whatsoever.

No one can say with confidence that any particular fleeing felon will be the one to strike. And if it is therefore disproportionate to kill him, the current Fourth Amendment standard is not reasonable.

I shared my misgivings about the wide use of permissive standards with Robinson, the law professor. “I think you underestimate the damaging effect of the criminal-justice system being unable to effectively arrest suspects,” he replied. “Yes, there is a societal cost when lethal force is used against arrestees who flee, but there is also a societal cost to the system’s reduced ability to arrest persons for past violent crimes.”

This kind of utilitarian analysis, however appropriate it may be in other areas of the law, seems at odds with the very idea of a constitutional right. Such rights function to protect individuals from the state, even, or especially, when the state might find it useful to abridge them. A standard allowing police officers to kill fleeing felons under the conditions set by Garner is useful, since some of those felons—who knows which?—will go on to commit violent crimes. But no one can say with confidence that any particular fleeing felon will be the one to strike. And if it is therefore disproportionate to kill him, the current Fourth Amendment standard is not reasonable.

On the other hand, perhaps a lower standard of proportionality is appropriate for someone who has “put himself on the wrong side of the law,” as Paul G. Cassell, a former federal judge and a professor at the University of Utah’s law school, put it to me. By definition, a fleeing felon against whom Garner would authorize deadly force has—so an arresting officer has probable cause to believe—committed a violent crime, or else threatened an officer with a weapon. He has then run away when the police tried to stop him. Quite apart from any utilitarian analysis of the social consequences of a Garner-like standard, these factors could be taken to justify the use of deadly force against him.

But the deaths of Milton Hall and Darrien Hunt, among others, show that Garner set the bar too low. At a minimum, police officers should be allowed to use lethal force only when it is reasonable to believe that a suspect is armed. This would temper speculation about future conduct with at least a loose notion of imminence. Second, police officers should not be allowed to shoot a fleeing felon unless he has threatened a member of the general public—and not merely a police officer—with death or serious injury. The police should of course try to arrest those who threaten them with weapons, and in doing so they must defend themselves as necessary. But to assume that such a person will also threaten members of the general public requires a large speculative leap—not only from past conduct to future conduct but also from one kind of circumstance to others that are very different.

​* * *

There is one class of police shootings in which the proportionality requirement seems to have been all but abandoned: car chases. The Supreme Court has given officers wide latitude to kill drivers simply on the fear that they will cause traffic accidents.

It’s indisputable that someone driving recklessly to escape the police poses a serious public-safety threat. A recent analysis conducted by USA Today found that, since 1979, 2,456 bystanders have been killed by police chases, along with 2,610 people who had not violated the law but were passengers in cars under pursuit. Because these findings were based on police reports, which sometimes omit mention of a chase, the true numbers are probably higher.

Yet it is hard to believe that the best response is for police to open fire on fleeing drivers. As a matter of principle, a reasonable standard of proportionality should match intent with intent: Officers should not try to kill people unless they are trying, or at least have tried, to kill or injure others. Dangerous though he be, a reckless driver presents a categorically less severe kind of threat than someone who has shown that he aims to inflict harm. And as a practical matter, if a driver is disabled, “the vehicle will most likely continue under its own power or momentum for some distance[,] thus creating another hazard,” as the International Association of Chiefs of Police has noted.

The Supreme Court’s sole reasonable car-chase decision came in the 2007 case of Scott v. Harris. There, the Court ruled 8–1 that an officer who had forced a fleeing driver off the road, inadvertently causing a crash that paralyzed him, had acted consistently with the Fourth Amendment. If safer means of stopping the car were unavailable—a claim that Justice John Paul Stevens disputed in his dissent—this conclusion is sound. But the Court has also found it constitutional to shoot (and kill) a driver whose flight had been momentarily interrupted, lest he start driving recklessly again. And it has even granted immunity from civil liability to an officer who shot a fleeing suspect just as his car began to move—that is, before the officer had had any opportunity to observe whether the suspect’s driving might pose a threat.

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In a ruling on that case that the Supreme Court overturned, the Ninth Circuit Court of Appeals had observed that police officers are free to discontinue car chases that place the public at risk. As Judge Stephen Reinhardt put it in a concurring opinion, “the chase itself cannot create the danger that justifies shooting [the] suspect.” This seems too sweeping, since there might be situations in which letting someone get away would be even more dangerous. And as the Supreme Court later noted in Scott v. Harris, discontinuing a pursuit does not guarantee that a suspect will stop driving dangerously.

But allowing deadly force to end chases in effectively all circumstances takes this logic to the opposite extreme. Ending a chase may not guarantee that a suspect will drive less dangerously. But most suspects are likely to slow down shortly after officers cease their pursuit, as studies based on interviews with apprehended suspects and aerial observations of discontinued police chases have found. And, provided that later attempts will be made to identify and arrest a suspect who escapes, it is simply not true, pace the Court’s majority in the same opinion, that ending dangerous car chases creates “an invitation to impunity-earned-by-recklessness.” This reasoning falsely assumes that a policy of shooting reckless drivers is the only possible deterrent, when in fact criminal penalties for fleeing a police officer act as deterrents as well.

Many police departments have implemented policies more restrictive, and more reasonable, than the Court’s breathtakingly permissive standard. In an amicus brief filed in Scott v. Harris, the Georgia Association of Chiefs of Police said that “when the immediate danger to the public created by the pursuit is greater than the immediate or potential danger to the public should the suspect remain at large, then the pursuit should be discontinued or terminated ... Pursuits should usually be discontinued when the violator’s identity has been established to the point that later apprehension can be accomplished without danger to the public.” And the NYPD’s patrol guide says that “police officers shall not discharge their firearms at or from a moving vehicle unless deadly physical force is being used against the police officer or another person present, by means other than a moving vehicle.” The last clause may be taken as a rebuke to officers who have shot drivers whom they claimed were trying to run them over—as if doing so would magically stop the car.

Of course, like all policies on the use of deadly force, this one creates ambiguities. If, for example, officers hear a single noise that might be a car backfiring or might be a gunshot, may they discharge a hail of bullets at the car’s occupants at the first possible instant? Such were the circumstances in which Timothy Russell and Malissa Williams, both unarmed, died needless deaths in Cleveland.

* * *

It is astounding that some police departments have voluntarily set stricter deadly-force standards than the courts have required them to employ. Often it is law-enforcement agencies that push the bounds of the permissible and courts that rein them in; here the relationship is reversed. The ways in which some departments have tightened their rules may suggest ways in which the constitutional interpretation itself will eventually improve. (The Constitution is susceptible of evolving interpretation on this point, since the Fourth Amendment says no more than that seizures may not be unreasonable.)

But there will be limits to what legal reforms can accomplish. In criminal law, proof beyond reasonable doubt establishes a suitably high bar for prosecutors to clear. And in civil law, the doctrine of qualified immunity shields officers from liability for violating people’s constitutional or statutory rights—and usually entitles them to summary judgment in their favor—if it can be shown that the legal standard was not clearly defined. In the murky, context-dependent area of Fourth Amendment case law, it often isn’t. This makes it very hard to impose on police officers any form of accountability between criminal guilt and full exoneration.

Courts and investigative bodies sort through the consequences as well as they can, but what they cannot do is bring back the dead.

Legislatures could partially address that problem by establishing that officers will not be granted qualified immunity in wrongful-death suits when their actions violate departmental training or policy. And independent bodies whose members include community representatives could be empowered to fire officers even if they have not been found criminally culpable or civilly liable.

But those are retrospective remedies. Courts and investigative bodies sort through the consequences as well as they can, but what they cannot do is bring back the dead. So the best solution must include widespread police training that emphasizes deescalation and helps officers win compliance before they ever consider using deadly force.

It isn’t hard to see how such an approach might have saved the life of Milton Hall. “The dog was unnecessary,” says Mark Fancher, an attorney with the Michigan ACLU who tried unsuccessfully to get the Justice Department to file civil-rights charges concerning Hall’s death. “[The police] were not going to unleash him,” says Fancher. “All the dog served to do was get [Hall] more agitated.” Fancher also wonders why the officers formed what was effectively a firing squad around Hall in the first place. Could they not have placed themselves at a distance, kept bystanders away, and, monitoring Hall, given him a chance to calm down?

No permission granted by the people to agents of the state is of graver consequence than permission to take life. It is often exercised under the sway of adrenaline and powerful emotion. By pitting the state against the citizen, it carries with it the ineliminable possibility that abuse and caprice will not be held properly to account. Given all of this, it is difficult to justify authorizing the use of deadly force for anything but unambiguous and compelling reasons. This principle seems to be at work in the public’s reactions to recent police killings. Perhaps legislators, the courts, and the police are ready to apply it.

What Will U.S. Stocks Do Next?

Updated on August 26 at 4:05 p.m. ET

U.S. stocks snapped this week’s losing streak Wednesday, closing sharply higher. The Dow and Nasdaq posted triple-digit gains. The S&P also rose, ending out of correction.

The three major indexes all rose more than 3.5 percent.  The Dow Jones industrial average closed up more than 600 points, the S&P 500 was up more than 70, and the Nasdaq closed up more than 190 points.

Stocks had performed well on Tuesday, too. At one point, the Dow was up more than 400 points. But a late-afternoon fade saw all three major indexes close in negative territory. Those fears persisted Wednesday—bolstered by fears about China’s economy.

Chinese stocks continued their losing streak, and European markets closed lower amid lingering uncertainty about the health of the world’s second-largest economy.

The Shanghai composite index closed down 1.3 percent. It was a relatively better performance than Monday, when it declined 8.5 percent, and Tuesday, when it fell a further 7.6 percent. It is now firmly in negative territory for the year. Stocks in Hong Kong also finished lower, down 1.52 percent. But Japan’s Nikkei shrugged off a losing streak to close up 3.2 percent.

U.S. stocks came off two straight days of losses this week. They were buoyed Wednesday by a solid durable-goods report.

Still, stocks worldwide are struggling to move past the uncertainty caused by China’s slowing economy—though some experts say the problem is a Chinese one, and not broader. The Chinese central bank is under pressure to show it will step in when needed. On Tuesday, China cut interest rates by 0.25 percentage points to 4.6 percent, and also increased liquidity by lowering banks’ reserve-ratio requirements. The central bank has also devalued the yuan.

In the U.S., speculation over whether the U.S. Federal Reserve will raise interest rates next month is adding to the uncertainty. The Wall Street Journal adds:

Some investors think China’s economic slowdown could delay the Federal Reserve’s plans to lift interest rates from near zero later this year. Many had previously expected a September rate increase.

One of the National Zoo’s Newborn Panda Cubs Has Died

One of two giant panda cubs at Smithsonian’s National Zoo in Washington, D.C., has died, the zoo said Wednesday. The cub was less than four days old.

The cub, the smaller of the pair, died shortly after 2 p.m., the zoo said in a press release. The other cub “appears to be strong, robust” and “behaving normally” under the care of its mother, Mei Xiang, who gave birth to them Saturday.

Giant pandas have twins about 50 percent of the time. In the wild, panda mothers can care for only one cub; they leave the other cub to die. In captivity, pandas receive help from veterinarians and zookeepers.

Shortly after the cubs were born, keepers retrieved one of them and placed it in an incubator while Mei Xiang nurtured the other. Keepers later swapped the cubs out so both could spend time with their mother. But by Monday, the strategy appeared to no longer work. Here’s the zoo from that day:

When they tried to swap the cubs at 11 p.m., Mei Xiang would not set down the cub she had in her possession. Consequently, the panda team cared for the smaller cub throughout the night until 7:05 a.m. when they successfully swapped the cubs. The panda team supplemented the smaller cub with formula by bottle feeding. They were concerned that the smaller cub was not getting enough volume so they moved to tube feeding which went well and quickly. Our goal is for each cub to spend an equal amount of time with their mother.

By Tuesday, zookeepers were caring for the smaller cub full time, bottle- and tube-feeding the tiny bear:

The cub has shown some signs of regurgitation which can lead to aspiration in such a tiny creature. To be prudent, the veterinarians are administering antibiotics to prevent possible infection. It's very important to keep the cub hydrated so they are alternating an infant electrolyte solution with formula and administering fluids under the skin.

Keepers tweeted a photo of the smaller cub Tuesday afternoon:

Haven’t been able to swap cubs since 2p 8/24.Mei has larger cub.Smaller cub’s behaviors are good;still high-risk time pic.twitter.com/FrEG2lYfEz

— National Zoo (@NationalZoo) August 25, 2015

Panda cubs are extremely vulnerable in their first few weeks of life. They are born blind, hairless, and weigh as little as a stick of butter. As adults, they can weigh more than 200 pounds.

In addition to the second newborn cub, Mei Xiang is mom to two-year old Bao Bao, who lives at the National Zoo, and 10-year-old Tai Shan, who lives in China.

When a Snuff Film Becomes Unavoidable

On Wednesday morning, two journalists in Roanoke, Virginia, were murdered on live television by a gunman. The two victims were a 24-year-old reporter, Alison Parker, and a 27-year-old cameraman, Adam Ward. The gunman was a “disgruntled former employee” of the TV station, according to Virginia Governor Terry McAuliffe. A suspect has since shot himself and died in police custody.

Two videos of the murders exist. The first was broadcast live, on TV, at the time of the killing. The second was taken by the gunman himself. He posted it to Twitter and to Facebook after the murder.

Both social media companies quickly suspended his accounts and removed the videos. For the 10 or 15 minutes before that, though, the videos circulated widely on both services as users shared them out of horror, confusion, or some other emotion.

In the past 12 months, both Twitter and Facebook have begun auto-playing videos when they appeared in a user’s feed. If a video comes across your feed, or you accidentally open it in a tab or tap a link on your phone, the video pops up and just starts playing. You do not have the option to figure out the video’s context, and choose whether to press play: On both Twitter and Facebook, the footage just starts rolling. Oftentimes, that video is an ad, so you close it or ignore it and go on with your life.

But on Wednesday, the video that was auto-playing in everyone’s feed showed the murder of two people. It’s impossible to tell how many people saw the video (though Facebook’s version of the video was shared 500 times before it was taken down), but user reports suggest that thousands and thousands of people witnessed—without being warned ahead of time or knowing what they were getting themselves into—a brief, vivid, and unmistakable snuff film.

Forcing thousands of people to view two deaths without warning or preparation causes real harm. For almost all viewers, of course, watching the video does not approach the anguish felt by the victims’s friends, families, or coworkers. But that the auto-playing incident was not the worst horror in a morning full of them doesn’t lessen the need to talk about it, to figure out what happened, and to prevent it from happening again.

When I asked Twitter for comment, it referred me to its media policies, specifically this section: “Media that is marked as containing sensitive content will have a warning message that a viewer must click through before viewing the media.” There is a brief period of time, though, between when a video is uploaded and when it’s tagged as sensitive, and many people saw the video during that gap today. I also asked Facebook for comment but haven’t heard back yet.

Twitter and Facebook were not the only venues showing video of the murder on Wednesday morning. CNN was showing the TV station’s version of the video once an hour. But that kind of viewing is different, I think, than the auto-playing mayhem that descended on Twitter this morning, because there was a warning before it. Except for someone changing the channel directly into the brief footage, a viewer would know what they were about to see and choose whether to watch it or not. I think, too, that the TV station’s version of the video was profoundly different than the murderer’s version, precisely because it was not filmed by the murderer.

There is some question as to whether media outlets should be showing these videos at all. In 2012, the sociologist Zeynep Tufekci wrote for The Atlantic about research suggesting that mass shootings, like teen suicides, are contagious: that by describing the specific method and setting of the killings, law enforcement and the media can prompt more of them. But while I don’t know that CNN is making the right choice to air the video, I do trust that they are thinking about it—that they are considering the airing of such a video as a meaningful act, one with possible benefits and consequences. I trust that they are thinking about it, in other words, editorially.

When Twitter debuted video auto-play earlier in June of this year, meanwhile, they talked about it as a technical improvement. “Rich media creatives will now auto-play in timelines and across Twitter,” said a company blog post, describing it as a “consistent, seamless and friction-free” change which would lead to “a more streamlined consumption experience.”

The problem is that Twitter, or Facebook, or any other platform for mostly unfiltered reality, should not necessarily provide such “seamless” and “friction-free” access to that reality. If the ambit of any social network is that people are better at managing what they want to see than old-school news editors are, then you actually have to let people choose what they want to see. And you have to understand, too, that when working on a website to which anyone can post, the technical choice to auto-play every video is a profoundly editorial one. Though individual users can deactivate auto-play (here are instructions), the feature supposes that most people will and should want to see every video that passes through their feeds.

I feel for the Twitter and Facebook employees who ordered, designed, and developed these features: Surely they didn’t anticipate that their workaday emails and meetings and server-architecture re-programmings would lead to thousands and thousands of people seeing a double murder.

But, as these features get reconsidered over the coming days, I hope they acknowledge that this incident was foreseeable. Since the feature debuted on Twitter in June, many people have pointed out that it auto-played all videos, including exceptionally violent ones. Those videos did not always reach the level of snuff films captured by a murderer, but they did show horrific violence against black people, often captured by a bystander or police-car dashboard camera:

Suddenly how to disable autoplay is important after Sandra Bland, McKinney, Walter Scott & Eric Garner. Uh huh. https://t.co/lnMWLDnDhF

— Amadi (@amaditalks) August 26, 2015

These are not baseless or frivolous concerns. Columbia University’s Center for Journalism and Trauma has detailed recommendations for dealing with distressing or violent imagery.

“Traumatic imagery needs to be handled with care, as it can place the wellbeing of those who work with it at risk,” says the center’s guide:

From research, we know exposure to limited amounts of traumatic imagery is unlikely to cause more than passing distress in most cases; media workers are a highly resilient group. Nevertheless, the dangers of what psychologists call secondary or vicarious traumatization become significant in situations where the exposure is repeated—the slow drip effect.

The guide specifically recommends that film editors “avoid using the loop play function when trimming footage of violent attacks and point-of-death imagery.” A timeline full of the same awful, auto-playing moment constitutes its own kind of loop play, converting a place full of friends and followers into one of unavoidable distress and sadness. If social networks want users to stick around, they would do well to keep that in mind.

A Shooting on Live TV in Virginia

Updated on August 26 at 2:37 p.m. ET

A former reporter at the CBS affiliate in Roanoke, Virginia, shot and killed two journalists from the station during a live broadcast Wednesday, and wounded a third person. He then led police on an hours-long chase before fatally shooting himself.

Police identified the gunman as Vester L. Flanagan, a former reporter at WDBJ7, who used the on-air name Bryce Williams. The victims are a reporter, Alison Parker, 24, and a cameraman, Adam Ward, 27, the station confirmed.

The gunman posted a video to Twitter and Facebook several hours after the shooting. The footage, filmed from a shooter’s vantage point, showed the gunman approaching the victims. Both Twitter and Facebook suspended his accounts soon after he posted videos of the shooting.

Ward was filming Parker interview Vicki Gardner, the head of the Smith Mountain Lake Chamber of Commerce, at Bridgewater Plaza in Moneta, Virginia, at about 6:45 a.m. The gunman walked up to them, and fired multiple shots. Gardner was shot in the back, and is in stable condition after undergoing surgery at a nearby hospital.

WDBJ reported that the gunman is in critical condition. Virginia State Police in a Facebook post said he “was transported to a nearby hospital for treatment of life-threatening injuries.” Franklin County Sheriff Bill Overton said the gunman was pronounced dead at Inova Fairfax Hospital in the Washington, D.C., area at approximately 1:30 p.m. He said the gunman died of a self-inflicted gunshot wound.

Overton said the gunman was “disturbed in some way.” Virginia Governor Terry McAuliffe, speaking on WTOP, described Flanagan as a “disgruntled” employee. Jeff Marks, WDBJ’s general manager, said during a live broadcast on the station that Flanagan “was sort of looking out for people to say something he could take offense to.”

Marks said Flanagan was fired after “many incidents of his anger coming to the fore.”

“He did not take that well,” he said.

You can watch the station’s live coverage of the shootings here.

The gunman shot his victims and escaped by car, leading the police on a pursuit. ABC News reported it had received a 23-page document by fax from someone named Bryce Williams. Here’s more:

A man claiming to be Bryce Williams called ABC News over the last few weeks, saying he wanted to pitch a story, and wanted to fax information. He never told ABC News what the story was. This morning, a fax was in the machine (time stamped 8:26 a.m.) almost two hours after the shooting. A little after 10 a.m., he called again, and introduced himself as Bryce, but also said his legal name was Vester Lee Flanagan, and that he shot two people this morning. While on the phone, he said authorities are “after me,” and “all over the place.” He hung up.

The network added that the document said Wednesday’s shooting was prompted by the church shooting in Charleston, South Carolina, in June.

The network said it handed over the document to investigators.

WDBJ described Parker and Ward, who both worked on the Mornin’ show,  as having “big plans and bright futures.” Here’s more:

Alison was smart and ambitious. Adam was a capable photographer who would go the extra mile to get the job done. And they had a lot in common.

They were both Roanoke-area natives, and had interned at the station before being hired. Parker was a graduate of James Madison University; Ward a graduate of Virginia Tech.

What Does Joe Biden Know?

As Joe Biden edges closer to a presidential run, there’s no shortage of theories as to what he’s up to. Former secretary of state Hillary Clinton has built a commanding lead in the national polls, giving Biden little apparent space to gain traction. Perhaps he’s counting on the early-primary state of South Carolina to provide a critical boost. He might be banking on appearing as a stronger general-election candidate than any of his potential rivals in the primary race. Maybe after spending the past 42 years of his life running for elective office, he just can’t stop.

But there’s one intriguing theory that has so far garnered little attention: What if Biden knows something about Democratic frontrunner Hillary Clinton that the rest of us don’t?

After jumping to what seemed a prohibitively large early lead, Clinton has stumbled in recent months. Vermont Senator Bernie Sanders, hardly the most charismatic politician, has emerged as a viable challenger, generating enormous enthusiasm on the campaign trail, and surging ahead in polling averages in New Hampshire.

Clinton, meanwhile, is battling a steady drip of negative headlines and revelations stemming from her use of a private email address and server during her term as secretary of state. Investigators have found that some emails contained information that was later classified, and media reports have suggested that some of this information may have been considered classified at the time it was shared, even if it hadn’t yet been labeled that way.

The emails that Clinton gave to the State Department are now being released in tranches every 30 days. Her server has been turned over to the Justice Department, which is reportedly optimistic that it can recover at least some of the emails that Clinton had deleted. No one knows what the emails that have not yet been released may contain.

No one, that is, outside of the administration. Those on the other end of Clinton’s correspondence presumably retain their own records of their exchanges. The White House has reportedly monitored the situation since before the questions over Clinton’s email became public. And the State Department has assigned a team to sort through the emails, reviewing them for classified information.

Clinton, and her loyalists, insist that the email probe is a distraction, and that there is no evidence that she deliberately broke any rules, much less violated the law. And so far, those claims have been borne out by each new round of disclosures.

If that’s not the case, though—if the emails contain revelations that are embarrassing, or worse—there’s a limited number of people who might be in a position to know it. Clinton’s own aides top the list. So do various White House officials.

And then, of course, there’s the State Department. Biden forged many relationships during his long tenure in the Senate, and State is chock full of longtime friends and former aides. The current deputy secretary of state, to choose the most prominent example, is Antony Blinken. He was hired as the staff director of the Senate’s foreign relations committee in 2002, and senior adviser to its senior Democratic member: Joe Biden. He stuck with Biden through the 2008 campaign, first becoming his national security adviser in the White House, then moving over to become Obama’s deputy national security adviser in 2013, and finally taking up his current role at the State Department in 2015. “I have now had the good fortune to work alongside Tony Blinken for many years,” Biden said when he was nominated for the State Department position. “He is a good man. I’m proud of him.”

There’s no reason to think that Blinken, or any of Biden’s other contacts within the White House or the national-security establishment, have shared with the vice president any information to which they’re privy. In fact, in late June, Blinken and his wife, another former Biden aide who’s now an assistant secretary of state, both gave the maximum allowable donation of $2,700 to Clinton’s campaign.

But if Biden seems more confident than most pundits that Hillary Clinton’s nomination isn’t inevitable, it may reflect more than his natural ebullience and legendary optimism. It may be a sign that he’s banking on voters learning things that he already knows.

Aurora Theater Gunman Formally Sentenced to Life Without Parole

A Colorado judge formally sentenced convicted Aurora theater gunman James Holmes to life imprisonment without parole on Wednesday, three years after a shooting rampage that killed 12 people and injured 70 others in the Denver suburb.

Judge Carlos Samour, Jr.’s ruling was largely a formality in the capital-murder case. On August 7, the jury sentenced Holmes to life imprisonment without parole and spared him the death penalty. Colorado law requires a unanimous jury to impose death sentences.

Arapahoe County District Attorney George Brauchler, who prosecuted the case, told the Los Angeles Times on Monday that a lone juror refused to vote for a death sentence. Brauchler also speculated that Holmes’s mental-health issues probably swayed the juror.

The formal sentence follows two days of emotional testimony from victims and their family members about Holmes’s crimes. Kathleen Pourciao, whose daughter Bonnie Kate survived gunshot wounds from Holmes during the shooting, condemned the jury’s decision.

“The message is the state of Colorado values a mass murderer more than the lives of those he murdered,” she told the court Monday. After she testified, Judge Samour defended the trial he oversaw and the jury’s decision. “You can’t claim there was no justice because it wasn’t the outcome you expected,” he told the courtroom.

Tag Team: The Graffiti Artists of Show Me a Hero

A few months ago, Chris Capuozzo was admiring his freshly scrawled graffiti on the walls of the Schlobohm Houses in Yonkers, remembering the nighttime raids he and his friends made in the 1980s on the NYC Transit Yards to tag subway trains. This time, there were no police to look out for since the work was totally legal, which in some ways only made him more nervous.

Capuozzo, a graphic designer, had been hired by the Emmy-winning art director Adam Scher to paint graffiti on the set of Show Me a Hero, the HBO six-part miniseries written by David Simon (The Wire, Treme) and directed by Paul Haggis, based on the 1999 book of the same name by Lisa Belkin. A former graffiti artist from Staten Island, Capuozzo is married to the photographer Denise Capuozzo, a Yonkers native. After hiring Capuozzo, Scher learned that Denise had a horde of photographs of the area in the late ‘80s, when the events in the series took place, which became invaluable for the show’s clothing and set designers in attempting to replicate the era.

(Denise Ranallo Capuozzo)

At the time, Denise Capuozzo’s motivation wasn’t to document the turmoil in the region, but simply to celebrate the reality of everyday life in Yonkers. Her images included a portrait series of high-school students, as well as street shots of residents going about their lives. Working with the spontaneity of a journalist, she captured the styles and fashions of the time. And several decades later, Scher and his team of designers pored over the archive while attempting to recreate the look and feel of 1980s Yonkers: Achieving verisimilitude was essential to the show’s creators.

(Denise Ranallo Capuozzo)

Show Me a Hero documents the effort to desegregate public housing in Yonkers during the late ‘80s, when a federal judge ordered Mayor Nick Wasicsko to build new low-income townhouses in primarily middle-class neighborhoods, rather than perpetuate further inequality by placing them in areas already blighted by poverty.

Replicating the graffiti of 1980s Yonkers was essential to the authenticity of the show’s sets. The original direction given to the set designers, in Chris Capuozzo’s words, was to have “giant multi-colored murals lining every available wall”—only that kind of street art didn’t exist in Yonkers at the time. Having studied Denise’s photos, he realized he needed to gather a group of individuals who were involved in graffiti in the area during that era, as well as assemble artists of various degrees of expertise—skilled graffiti artists, younger beginners, and amateurs. He also made use of building-maintenance staff who, when they attempted to clean the paint, often left smeared stains or mismatched color patches on the walls, and added some “wild style” lettering interspersed with other less ostentatious tags.

On the set of Show Me a Hero (Chris Capuozzo)

During the late ‘70s, a handful of notable graffiti writers started in the nearby Bronx—including Blade, Seen, T-Kid, and Fuzz—but since they painted trains, their names and work extended well beyond the area. By the late ‘80s, Capuozzo says, things had changed. Tagging trains was out, and “street bombing” was in, with graffiti cropping up on highways leading in and out of the boroughs. So most of the graffiti writers Capuozzo needed to channel for Show Me a Hero were lesser-known locals.

To balance authenticity and stagecraft, Capuozzo looked at graffiti done in the Bronx in the 1980s, but the work was much too good for the novice artists he needed to emulate. “In effect, I was doing ‘bad’ copies of those writers’ styles,” he says. But his commitment demonstrates how seriously producers and designers take historical accuracy in period shows. Capuozzo’s graffiti isn’t present in more than a handful of scenes, but it helps set a foundation for the drama that makes the events portrayed even more compelling.

When production began, all the buildings that comprise the Schlobohm Houses (where the original story took place) were clean. Within weeks the locale was transported back in time, which prompted mixed reviews from residents. “Some folks didn’t appreciate seeing the walls get trashed,” Capuozzo says. But some didn’t mind the flashback. One resident passed by as they were painting, offered Capuozzo a fist bump, and shouted “Oh YEAH!” It expressed, the designer says, the energy that graffiti “had, and still has, the power to evoke.”