*Disclaimer: This piece is not an indictment of all law enforcement officers and it is notmeant to absolve from wrongdoing those individuals who may have been or may be involved in criminal activities that lead to fatal outcomes.
This podcast episode (find text HERE ) uses excerpts from an interview Jones-Rogers gave to Berkeley News in June 2017. The blog post provides a complete picture of the conversation.
One year to the day that Dylann Roof murdered nine African Americans in Mother Emanuel Church in Charleston, South Carolina, a jury exonerated Jeronimo Yanez, the police officer who shot and killed Philando Castile. In African American communities around the country, few individuals were surprised at the verdict. More than anything, individuals expressed deeper sorrow and intensified disappointment because, once again, many of us held out hope that the justice system would hold the man who killed another human being accountable.
Some of us were more profoundly saddened that, yet again, the judicial system did not deliver justice to a victim of state-perpetrated violence. And before we could properly grieve this injustice, we learned that on June 19, 2017, two Seattle police officers shot and killed Charleena Lyles, a pregnant African American mother of four, even though she was the person who contacted police to report a possible burglary in the first place. They killed her in front of three of her children aged 1, 4 and 11 and her fetus did not survive. According to the Guardian, and other media sources, she was known to at least one of the officers who answered the call, and prior to the confrontation, the officers were made aware of and, thus, knew that she struggled with mental health issues and had been confrontational with officers in the past. And yet, they killed her, and her fetus, too.
In the wake of these events, I asked a friend of mine, who also happens to be an African American police officer, for his unique perspective on the recent string of police killings and exonerations. He suggested that only a black fool would still hold out hope of ever being treated justly by a legal system constructed to do the opposite. This did not startle me as much as I thought it would because, as a historian of slavery, I knew very well that such outcomes have been commonplace, not just in the recent months, years, or even decades, but since the 17 th century.
Colonial and 19th century laws offered Anglo Americans a variety of means by which they could escape punishment for murdering a person of African descent, especially if they were enslaved. And as we reckon with the seemingly endless violence perpetrated against black and brown bodies by a host of individuals, and their subsequent exonerations, it is crucial to keep this longer and deeply troubling history in mind.
As early as 1669, colonies like Virginia passed laws, which sanctioned what they called the casual killing of slaves." These acts allowed free, typically European-descended people, to murder an enslaved person in specific circumstances. Decades later, in 1690, South Carolina passed an Act for the Better Ordering of Slaves. The state updated the act in 1712, 1714, 1722, and many times over the course of the 19th century. It permitted every master, mistress or overseer, which referred primarily to European-descended colonists at this point, to whip any strange negro or other slave coming to his or their plantation... on Sundays and holidays, or any other times, unless they were visiting on business, even if the enslaved person had their owners permission to be there. The law also required all enslaved people to carry a pass or ticket, which had to include their names, the nature of their business, the places where they were traveling to and when they were expected to return from their errands. Without this document, the law empowered any free European-descended person to stop them, whip them, and if they resisted capture, to maim or kill them. More perversely, the law exonerated any European-descended person who murdered an enslaved person in the course of interrogating or attempting to apprehend them.
In terms that sound eerily like the Castle Doctrine or contemporary Stand Your Ground laws, South Carolina also permitted homeowners/dwellers to kill a slave stealing in his house or plantation by night if the enslaved person refused to submit. If the homeowner/dweller did indeed kill the alleged thief, the law did not consider the killer liable for damage or action. The act even gave slave-owners an easy way out of potential murder charges. If slave-owners swore an oath that they did not intend to kill their slaves during the course of punishment, they would not be charged with any crime. The same applied to European-descended individuals who killed another persons slave.
Now, under these circumstances, African-descended enslaved people struck out for freedom, as they often did without any prodding or provocation. And, if they were caught, they paid a high and heavy cost for doing so. The first time an enslaved person, who was 16 years of age or older, ran away from their master, mistress or overseer, the law provided that they should be publicly and severely whipped up to 40 times. The second time they ran, theyd have an R branded onto their right cheek. The third time, theyd be whipped up to 40 times and have one of their ears cut off. The fourth time, theyd be castrated if they were male, and if they died as a consequence of the castration, no one was held liable for their deaths. Heres the kicker: the state compensated the owner for the lost value of the enslaved male out of the public treasury. If the enslaved runaway was female, shed be whipped, have an R branded onto her left cheek, and have her left ear cut off. And if, after all of this, an enslaved person attempted to run away a fifth time, they were put to death. In this case, too, the state compensated slave owners for the loss of their human property out of the public treasury.
On the one hand, these laws display a state-designed system meant to criminalize African-descended peoples attempts to secure some modicum of freedom. But on the other, the laws reveal the lengths to which enslaved people would go to secure their liberty, in spite of the risks.
Similar laws prevailed throughout the South. Over the course of the 19th century, the nation fortified these laws with stronger ones, implementing federal legislation such as the Fugitive Slave Act of 1850, which compelled every single person in the nation, even those residing in the North, to aid in hunting down and capturing enslaved people who allegedly fled their owners (free African Americans were wrongfully enslaved because of this kind of legislation). European-descended people were integral to this national system of surveilling and policing of black and brown bodies. And for those bodies that were more unruly than most, the state empowered European-descended people to beat, maim and even destroy them.
...the laws reveal the lengths to which enslaved people would go to secure their liberty, in spite of the risks.
Paramount to this system of state-sanctioned violence were groups of white men called patrols or patrollers. When it came to African-descended people, these patrols operated as the eyes, ears and arms of the state and the slave-owning class, especially when they werent able to police enslaved people themselves. Historian Sally Haddens book Slave Patrols offers an excellent, comprehensive examination of these groups. Enslaved African Americans feared patrollers immensely, not only because they were empowered to hunt them down, but also because they could kill them if they did not submit or behave in ways patrollers deemed appropriate. Even when enslaved people possessed the requisite passes or tickets, which permitted them to travel beyond their owners estates, patrollers were notorious for destroying them and even brutalizing enslaved people that had them, something they werent entitled to do.
Even after slavery was over, European-descended Americans captured, tortured, mutilated, dismembered, castrated, raped and burned alive African Americans whom they allegedly feared. They performed these macabre blood-letting rituals at least 4,000 times, often in the presence of hundreds, and even thousands, of white men, women and children. The estimate used to be lower, but Bryan Stevenson and the Equal Justice Institute have built upon the research, which the NAACP and Tuskegee University conducted throughout the 20 th century, and they uncovered hundreds more lynchings that took place in this period that remained unknown to us until recently.
White mobs often claimed that they lynched black men because they had raped white females. They did so in spite of no evidence, evidence to the contrary, or after brutalizing the accused until they confessed. But rape accusations were not the only grounds upon which white mobs committed these atrocities. Black political activism, attempts to unionize, voting, economic success, murder, poisoning, and arson accusations, whistling, wearing a military uniform and accidentally bumping into white women led white mobs to lynch black men. Some white mobs lynched men simply because they were black. When white mobs could not find their intended victims, they sometimes lynched other black men instead, simply because they were within reach.
As Ida B. Wells and the female members of the Anti-Lynching Crusaders argued long ago, and as Yale historian Crystal Feimster has recently shown, women were not spared from this violence. Neither were children. In 1911, a white Oklahoma mob lynched Laura Nelson because she tried to protect her young son, L.D. The mob lynched him too, and left Laura and L.D.s bodies dangling side by side from a bridge for all to see.
Throughout the 20 th century, white mobs perpetrated these atrocities against African-descended men, women and children while white communities watched and sometimes participated. They did so with impunity and with police and state sanction, complicity and assistance. Many of the victims were held in local jails and were awaiting trials when sheriffs, deputies and police essentially handed them over to white mobs. These officers claimed that they were powerless to stop them. Newspapers advertised upcoming lynchings on their front pages, and some governors publicly approved of the acts. Even though communities knew very well who committed these heinous acts, they and the media often claimed that the crimes were committed at the hands of persons unknown.
Yet photographers, who were occasionally in attendance, took pictures of black victims and their tormentors, and sold them. Many of these photos clearly showed faces in the crowd and could have been used to identify the perpetrators. A poignant example is the 1935 photo taken of Rubin Stacy, who was lynched in Ft. Lauderdale, Florida after a white woman claimed that he tried to rob her (he was really a homeless tenant farmer who knocked on her door in hopes of securing something to eat). It captured the faces of white men, women and children, who seemed to be dressed in their Sunday best, as they viewed Stacys corpse. The most startling feature of this image would no doubt be the smiling white girl standing near Stacy as she stares at his lifeless body hanging from a tree.
Many of these lynching photos were transformed into postcards, which people mailed to friends and family across the nation. You can see many of these postcards here: http://withoutsanctuary.org/. There was no clandestine mail route; they sent them directly through the U.S. Postal Service, and they did so with impunity. One man planned to (or actually did) send his parent(s) a postcard, which featured the charred corpse of Jesse Washington, a mentally challenged 17-year-old boy, who he and others had beaten, castrated and dismembered before they burned him alive in the middle of a crowd of 15,000 people half of the towns population on May 16, 1916 in Waco, Texas. He marked his own position near the body with an X. He also referred to Jesse Washingtons torture and destruction as a barbecue.
At the same time that the Comstock Act made it illegal to mail obscene literature, such as materials related to contraceptives, through the U.S. Postal Service, mailing postcards which featured images of bloody, burning, hanging, castrated black bodies, even the dead bodies of black children, was not a crime. In 1908, the act was modified in order to ban material tending to incite arson, murder, or assassination," but that didnt stop photographers from continuing to take the images and selling them to individuals anyway, nor did it prevent individuals from circulating them amongst themselves or mailing them to others. They simply put the postcards into envelopes. In spite of this photographic evidence and the many witnesses, states failed to charge or convict individuals for the deaths of African American victims in all but the rarest of cases. People expressed concerns about the violence, but this did nothing to stop it.
In recent times, folks have drawn many parallels between the contemporary horrors, which we have increasingly been able to watch unfold on camera, and those which took place during the 20 th century, and rightfully so. I could say much more about the linkages between these earlier systems of brutal policing and the litany of police killings in the modern era. But for my purposes here, Im interested in the ways in which local, state and federal laws undergird the state-perpetrated and state-sanctioned destruction of African-descended people.
The colonial and 19 th century laws described above make it abundantly clear how and why a European-descended person could murder a person of African descent, especially if they were enslaved, and get away with it in the past. But what about today? How is it legally possible for a police officer to kill someone, whether their victims are African American or not, and not be charged with, or convicted of, any crime? Two landmark Supreme Court cases from the latter half of the 1980s help to explain.
In 1974, a Memphis, Tennessee woman reported a possible burglary in the house next door. Officers arrived on the scene to investigate. One of these officers, Elton Hymon, went to the back of the house, heard noises, and then saw Edward Garner, a 15-year-old African American boy, fleeing the scene. He identified himself as an officer, told Garner to stop, and when Garner attempted to scale a fence in hopes of escape, Hymon shot him in the head, killing him. Prior to shooting, Hymon was pretty certain that Garner was unarmed, but since a Tennessee statute permitted police officers to use deadly force in order to prevent escape, Hymons actions were protected by state law. Even so, Garners father argued that the law violated his sons Fourth Amendment rights against unreasonable search and seizure. The U.S. Court of Appeals for the Sixth District agreed with him and in 1985, so did the U.S. Supreme Court.
How is it legally possible for a police officer to kill someone, whether their victims are African American or not, and not be charged with, or convicted of, any crime?
In Tennessee vs. Garner, the U.S. Supreme Court affirmed the Court of Appeals ruling that Hymon used deadly force in a way that violated Garners constitutional rights. The Supreme Court reiterated the lower courts assertion that [o]fficers cannot resort to deadly force unless they have probable cause to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large. Ironically, in stating when officers could not resort to deadly force, the Supreme Court actually told officers when deadly force was acceptable, i.e. in cases when they have reason to believe that the suspect poses a threat to their safety or the safety of others.
In 1989, the Supreme Court again had before them a case, which compelled them to contemplate the issue of excessive force during contact between police and civilians. In the case of Graham vs. Connor, police suspected that Dethorne Graham, a diabetic man whose only crime was leaving a store before he was able to buy what he went there for was up to no good. Police officers found his quick departure from the store suspicious, and this, they believed, gave them reasonable cause to follow the vehicle Graham was riding in, stop and ask him what he was doing at the store, and detain and handcuff him until they could investigate their suspicions.
Officers subsequently learned the Graham wasnt engaged in criminal activity. Graham went to the store to buy orange juice because he hoped to stave off diabetic shock, but he left as quickly as he did because the store was too crowded. When he tried to explain this to the officers they refused to listen. For those familiar with diabetes, youll know that this detention and the resulting drop in Grahams glucose levels could have impaired his life. Nevertheless, Graham sued, claiming that police violated his constitutional rights. The Supreme Court had to consider whether the force which police used in this case was excessive or appropriate, and they assessed whether it would be considered so if the reasonableness standard was applied. As the ruling stated:
The Fourth Amendment reasonableness inquiry 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. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
In other words, the legal measure of excessive force is highly subjective and case-contingent. Under the circumstances of the Graham case, the Supreme Court did not believe the officers employed excessive force, even though Graham was cleared of wrongdoing.
When taking the Tennessee vs. Garner and Graham vs. Connor cases together, it becomes a bit easier to understand why a jury might fail to convict police officers that kill in the line of duty. If jurors believe a reasonable officer, when placed in identical circumstances, would also use the same level of force against someone especially if they believe that the person pose[d] a threat to the safety of the officers or a danger to the community if left at large juries would be averse to convicting the officer in question.
In cases like this, what are our courts really asking jurors to do when they charge them with determining whether a reasonable officer had probable cause to fear a civilian, so much so that they acted in ways that led to that civilians death? As Philip Stinson, a Bowling Green State University criminologist and former police officer, has shown, members of juries are compelled to crawl into the heads of accused officers and to imagine whether these officers would have probable cause to have reasonable fear for their lives or those of others under the circumstances which resulted in the civilians deaths.
Where are the limits to this reasonable fear? I mean, there is a point at which I think its quite unreasonable to be fearful.
Courts may think that jurors can make these determinations without prejudice or bias, but history, research and common sense suggest otherwise. According to Stinson, most Americans have been socialized to admire and trust police officers, so they find it difficult to convict officers of wrongdoing. What happens when you consider race here? By this I mean, if a juror has grown up and lived in a community in which all of the police theyve ever encountered were white, what is the likelihood that their imagined reasonable officer would be anything else? Is it plausible to think that they would imagine a raceless reasonable officer, or a black one? Taking this a bit further, if jurors have been consciously or unconsciously taught that black people men in particular are inherently violent and criminal troublemakers who dont follow the rules and that, by extension, they pose real threats to officers safety, then under what circumstances would these jurors consider a reasonable officers fear of a black civilian un reasonable? Furthermore, jurors are barred from considering officers underlying intent or motivation when using force, so they cant take potential biases, which those officers may have harbored against the civilian, into consideration, no matter how blatant those biases may be. So, even if jurors did suspect that underlying biases played a role in a police killing, they cant factor that into their determination.
Given these circumstances, juries have not convicted many officers of wrongdoing. Philip Stinson estimates that over the past 13 years, there have been approximately 1,000 police shootings per year. Over the past 10 years, only 54 officers have been charged with fatally shooting a person while on duty. Out of those 54 cases, 35 were resolved" 21 of which involved acquittal or dropped charges. Stinsons research also shows that the vast majority of these deadly shootings involved seasoned, experienced officers with at least a decade or more of service. Thus, these shootings have not typically been the result of what could be termed rookie mistakes.
The history of slavery, the assumed criminality and criminalization of African-descended people from colonial settlement to the present, as well as the racialization of fear, all but guarantee that African-descended people will constitute the majority of the individuals who will die at the hands of officers. And this has proven to be the case. African Americans are 2.5 times more likely to be shot by police than white civilians and 3 times more likely to be killed by a police officer than a white civilian, even though less than 1 in 3 black victims were armed or suspected of criminal activity.
In the string of recent cases involving police whove used excessive and deadly force against black civilians, it is clear to me that this longer history, particularly the racialization of fear, must be taken into account when courts ask juries to determine whether a police officers fear for their safety is reasonable or not, or whether an officer used excessive or deadly force improperly. Was it reasonable for Betty Shelby to fear Terence Crutcher and to shoot him to death in spite of the fact that he was unarmed, was quite a distance away from her and was standing in a posture signaling his acquiescence? Was her use of deadly force in such a case appropriate? Apparently, the answer to these questions is Yes. Not only did a Tulsa jury acquit Betty Shelby earlier this year, she received $35,000 in backpay and continues to work for the Tulsa Police Department. Yet Terence Crutcher is dead, all because his car broke down in the middle of an Oklahoma road.
The tables have quite thoroughly been turned in the case of Justine Damond in Minneapolis, Minnesota. On July 15, 2017, Mohamed Noor, a Somali-American police officer, shot and killed Damond, a 40-year-old white Australian woman, after she called police to report a possible sexual assault near her home. In various respects, this case bears the marks of many of those we have seen involving black victims of police shootings in the past several years. As in the case of Charleena Lyles, Damond contacted the police to report a potential crime in progress and ended up dead. Although Noor and his partner were wearing body cameras, they were not turned on, even though they should have been. Mysteriously, the dash camera on the police car also failed to capture the incident. And, as weve seen in countless other cases, Damond posed no obvious or immediate threat to the officers who responded to her call. Yet Noor has stated that she startled him. Fred Bruno, the lawyer representing Noors partner, claimed that the officers had reason to fear a possible ambush, and thus, they feared their victim, and feared for their safety. Here, you can see where the Tennessee vs. Garner case comes in. Bruno claims Noor used deadly force because he feared for his safety, which, in his line of thinking, would legitimate the shooting.
These details probably strike you as unremarkable. But what is remarkable, at least to me anyway, is how Minneapolis authorities and the media are handling this case so far. In the seven days since Damonds death, Betsy Hodges, the mayor of Minneapolis, posted a statement on Facebook in which she said that she was heartsick and deeply disturbed by Damonds death. Jane Harteau, Minneapolis Chief of Police, told the media that Damond didnt have to die. Mayor Hodges has since called for Harteaus resignation because she has lost confidence in the chiefs ability to lead and because she claimed that Harteau has lost the confidence of the people of Minneapolis as well. Harteau has obliged Hodges request and has tendered her resignation.
So far, no media outlet has attempted to sully Justine Damonds name or reputation. They havent dredged up some ugly event in her past or accused her of being a criminal or an illegal drug user, and no one has said that she smelled like marijuana or had it on her person at the time of the shooting, a bizarre observation which police departments, officers and the media have so often made about black victims of police violence. No Minneapolis official has attempted to legitimate or explain away Mohamed Noors actions that night. In fact, city officials have asked Noor to explain himself, calling on him to speak to the public about why he shot and killed Damond. And politically conservative commentators have not defended Noor. Quite the opposite; they have begun to smear him and are using the Damond/Noor case to call diversity hiring practices into question. For example, Michele Bachmann, former Congressional Representative for Minnesotas Sixth District, called Noor an affirmative-action hire by the hijab-wearing mayor of Minneapolis, Betsy Hodges.
Will Minneapolis indict Noor, or refuse to do so, as has been the case in so many other incidents like this one? If they do charge him, will a jury determine that Noor had probable cause to fear for his safety and the lives of others? Will they see him, a Somali-American Muslim man, as a reasonable officer, and will they think he had probable cause to fear Justine, a white woman? Or will they determine that he had no reason to fear her? What would it mean if they make the latter determination? And if they convict Noor, what will his punishment be? In other words, how will the events that unfold in the next few months parallel or differ from those we have seen in similar cases involving white officers and black victims? It is too soon to tell how this case will end, but I will surely be watching it with great interest.
If I were bold enough to imagine the outcome of this case, particularly in light of all Ive discussed here, I would predict a favorable one for Justines family. I think Minneapolis will come down hard on Noor and dismiss all claims of probable cause and reasonable fear. When and if they apply the reasonable officer test, I think that the jury will find that a reasonable officer placed in Noors circumstances would not fear a 40-year-old white female yoga instructor from Sydney. When all is said and done, I think the jury and the city of Minneapolis will deliver justice to Justines family. Andthis is exactly what Justine and her family deserve. I also believe that this is what the families of Sam Dubose, Sylville Smith, Philando Castile, Terence Crutcher, Freddie Gray, Tamir Rice, Sandra Bland, Alton Sterling, Charleena Lyles and the loved ones of countless others deserve, too.
Surely, this is not the "United States of America" that our founders imagined.
The truth of the matter is that all of these deaths are becoming costly for every single American taxpayer. We are paying millions of dollars to clean up the bloody messes, which police shootings leave behind, and we are paying to make their problems go away. Take this handful of recent settlements. The City of Cleveland paid Tamir Rices family 6 million dollars even though the city failed to indict the officer who was responsible for the 12-year-olds death. Minneapolis decided to dole out a 3 million dollar settlement to Philando Castiles mother Valerie only two weeks after jurors acquitted his killer. The city of Milwaukee has agreed to pay a 2.3 million dollar settlement to Dontre Hamiltons family after he was shot dead by a police officer in 2014, even though the officer who killed him was not charged with his death. Ferguson, Missouri also paid Michael Browns family a 1.5 million dollar settlement after he was killed by a police officer who was never indicted. New York City awarded Eric Garners family a 5.9 million dollar settlement and gave 4.8 million dollars to the family of Akai Gurley. Sandra Blands family received a 1.9 million dollar settlement, too. These payouts remind me of the compensation which colonial and 19 th -century courts paid to slave-owners when their slaves were killed. Just like today, those funds came out of the public treasury. Now, however, the money goes to slain victims families. Apparently, black lives do matter, but only after theyve been destroyed.
These settlements should be unsettling to us all for at least two reasons. Our tax dollars not only help pay the salaries of these officers; our tax dollars form the bulk of these multi-million dollar settlements. Let that sink in. You go to work, you pay taxes, and your taxes help pay police officer salaries. Thats okay, right? But, when officers kill in the line of duty and are later cleared of wrongdoing, your taxes help pay the families of the victims for their losses. This leads to an obvious question: If the officers, who are responsible for the deaths of these individuals, have been cleared of wrong doing, why are cities paying their families millions of dollars? Is this justice?" Is this fair to the victims, to their families, or to us ?
Surely, this is not the United States of America that the founders imagined. In principle, this is not the democracy, which the founders had in mind, either. What is the solution?
Out of sheer ignorance, Rudolph Guiliani, former Mayor of New York City, offered a simple answer last year: Black fathers simply have to teach their children to respect police officers. Then, we have to assume, officer wouldnt shoot them. Clearly, he has never heard of the talk, or the compulsory conversations that all the black parents Ive ever known have had with their children. Black parents have long instructed their children to respect authority figures. But we also teach them that some of these people may exploit their power in ways that cause them harm.
More than anything, attentions and efforts have been wrongly geared toward instructing African Americans about how to avoid being brutalized or killed by police. The list of things that African Americans are advised to do, and not to do, to escape beating and death at the hands of police, is dizzying and seemingly endless. We are told to listen to and follow all police commands, not to move too suddenly or too slowly, not to question officers about their reasons for pulling us over, even when we havent done anything wrong, not to reach for anything, to always keep our hands visible and on the steering wheel, to be respectful, to raise our arms above our heads to demonstrate that we dont pose a threat, which, as we saw in Terence Crutchers case in Tulsa, Oklahoma, doesnt ensure our survival.
We are faced with incontrovertible evidence that these laundry lists of dos and donts are not the solution to this problem. And as thousands of cases have shown, even when African-Americans adhere to every bit of this advice even when we do everything right we still might end up dead.
If we truly hope to resolve these issues, if we hope to come closer to the founders democratic vision, we might want to revisit and immerse ourselves in their words. Or, if we are hesitant to delve this far back in time, theres still no reason to reinvent the wheel. In 1968, President Lyndon B. Johnsons National Advisory Commission on Civil Disorders, or the Kerner Commission as it was called, produced a report in which they offered excellent, concrete strategies for how to improve relations between police and civilians in communities of color.
More recently still, in 2014, the Department of Justice formed a Presidential Task Force on 21 st Century Policing, and they too produced a report which offered recommendations that could be immensely useful in this endeavor (see Appendix E, which begins on page 85 of the report). Even the Fraternal Order of Police has endorsed many, though not all, of the recommendations in the report. This means that we already have a blueprint for change.
The question before us now is: Are police departments around the country and other groups who have the blueprint before them, willing to implement the changes that these reports suggest?