SECTION 3 – THE GENESIS OF SYSTEMIC RACIST POLICE VIOLENCE AND STRUCTURAL RACISM IN THE UNITED STATES

 

 “Racism is not the whole but the most visible, the most day-to-day, the crudest element of a given structure….We must look for the consequences of this racism on the cultural level. Racism, as we have seen, is only one element of a vaster whole: that of the systematized oppression of a people.” —Frantz Fanon[1]

 

  1. The recent uprisings against police violence have brought fresh attention to the roots of racist policing and the killings of innocent Black and Brown people. The book, An Indigenous Peoples’ History of the United States, by Roxanne Dunbar-Oritz, provides a complete and comprehensive history of the founding of the United States of America and its militaristic, genocidal roots. The most instructive aspect of this body of work associates the identity of whiteness with the mass killings of First Nations peoples. This same license to kill, which validated whiteness, was refined in the enslavement of Africans in the United States.

 

  1. At the beginning of the building of the U.S. slave economy, indentured whites were contract laborers. But with the expansion of the transatlantic slave trade and the accompanying construction of Blackness with inferior status, whiteness became synonymous with being superior to Black people. As Ed Baptist noted,:

 

Throughout the 17th century the slaveholders successfully convinced the European-descended (i.e., white) population as a whole to participate in the constant controlling of Africans’ movements. By the dawn of the 18th century, racialized policing operationalized white racism on a daily basis: maintaining, dynamically enhancing both slavery and prejudice.  Historians have documented how whites, who all possessed the sovereign right to kill runaway slaves, were not just like little kings, but also like very big “citizens.” They were defined as legitimate “inhabitants,” of the colonies, as they would later be called “citizens” in the constitutions of independent states. And they were so defined in no small part because they were expected to, required to, rewarded for, and did always participate in policing Africans.[2]

 

  1. Black people were caught in a nested loop of violence, dehumanization and systemic exploitation of their labor power. Such violence, dehumanization and exploitation required a precise legal, military and ideation system. The necessity to police the movement of Black people and to extract wealth from them gradually cemented the racial division in the U.S. Baptist observed,

 

For police-citizenship built upon— and simultaneously, built—not only the expectation that all white folks will have a kind of membership in and acknowledgement by society that no African people can ever attain. But also; that Black folks will forever be suspected fugitives, people in need of surveillance and containment. So also emerged was another expectation among many whites, one that grew stronger and more expansive over the eighteenth century: that all whites will have a kind of egalitarian status above that of enslaved Africans and even free people of color. For police citizenship wasn’t then and isn’t now just for police professionals. Colonial slave codes gave all whites the duty and the right to exercise ever more systematic surveillance of the enslaved, or presumed-enslaved.[3]

 

  1. This tradition of control and surveillance of Black people by whites survives to the present day where police are given the extraordinary power to stop individuals, question them and search their persons or belongings if police officers have reasonable suspicion that a crime is being or is about to be committed by the individual.[4] The policy implementation of the principle that whites could apprehend Black people in Virginia dates back to 1630, very soon after the establishment of the colony. In his study of early policing brought to the U.S. after 1619, Baptist explained that the South Carolina colony’s 1690 Slave Code, borrowed from Barbados, explicitly granted whites the right to kill an escaping captive.

 

  1. In an early “slave code,” eight of the first 12 articles explicitly described how to hunt, capture, and hold runaways. For by law and custom, by 1770, throughout Britain’s North American colonies, every person of any visible African descent—what we in the U.S. today would identify as “Black”—was considered a potentially disruptive fugitive until proven otherwise. And by law and custom, every white person had both the duty and the power to police Black people. This power did not stop with the policing of fugitives, or potential fugitives—although one could say that in the eye of white surveillance, every person of any apparent African descent was potentially a fugitive. And, again by law, whites could kill enslaved people who resisted punishment for not performing forced labor, or who allegedly resisted anything whites did at all. This culture gave whites the right to kill at will. The state of Virginia was where the political, legal and military traditions were forged.

 

  1. Whites did not need a warrant to question or seize African people—to police them—for any Black person might be a fugitive. The government promised to pay the cost of hunting runaways, eliminating some of the counter-incentives that might undermine the unity of the policing population. Meanwhile, as whites hunted runaways—sometimes to the death—they required enslaved Africans who traveled off their enslavers’ properties to carry passes and present them to any whites who demanded them. Whites eventually demanded that free people of color carry documentation of their non-slave status, cementing the idea that any white person could police any movement by a Black person.

 

  1. After the Haitian Revolution (1791-1804), the Louisiana Purchase doubled the size of the United States, while simultaneously frightening whites into opposing all forms of Black self-determination. The political economy of the U.S. was dominated by the appropriation of wealth from enslaved Africans. Enslavement “shaped every crucial aspect of the economy and politics” of the U.S.[5] The surpluses accumulated from unpaid labor were invested in all sectors of the economy and affected everyone, from textile manufacturers to manufacturers of farm implements; from textile workers, bankers, and shipbuilders in the North to the elite planter class, working-class slave catchers, and slave dealers in the South to the yeoman farmers and poor white people. There is currently a sharp debate among economic historians about the amount of capital extracted from Black bodies. Mainstream academics dispute the calculations which showed that “by the time the enslaved were emancipated, they comprised the second largest asset in the United States of America.”[6] Poor whites were always reminded that they were superior to the African, whether free or enslaved.

 

Slave Patrols as Antecedents of Modern Policing

 

  1. Baptist’s work, The Half Has Never Been Told,[7] documented that the 400 percent increase in the daily yield of cotton-picking between 1800 and 1860 stemmed from the systematization of whipping and torture as a means of increasing production. Enslaved Africans resisted this systemic torture and organized on a day-to-day basis to oppose the whip. Enslaved people slowed work, disabled machinery, and developed inventive forms of resistance. The overt form of opposition was running away from plantations and coercive work. It was the mechanism to prevent escape from enslavement that deepened the policing of Black bodies. From the colonial period, slave patrols existed in all parts of settler colonialism.

 

  1. In 1704, the South Carolina legislature passed a law requiring each of the colony’s rural militia districts to create slave patrols composed of white men who would ride “from plantation to plantation, and into any plantation.”[8] Virginia had enacted its first formal, organized patrols into law in 1727. North Carolina regularized them in 1753. Colonial laws cycled through different types of patrol organizations—sometimes paid, sometimes not, and sometimes riding at irregular intervals, sometimes at regular ones. From the period of the Slave Patrols to the Fugitive Slave Act, whites were empowered to control the bodies and movement of Black people. The statutes, which were later codified in the Fugitive Slave Act of 1850, [9] gave the federal government responsibility for locating and returning fugitive slaves, required local law enforcement to assist in the capture of slaves, and made assisting fugitive slaves a crime. The statutes passed by Congress in 1793 and 1850 provided for the seizure and return of runaway slaves who escaped from one state into another or into a federal territory. The 1793 law enforced Article IV, Section 2, of the U.S. Constitution by authorizing any federal district judge, circuit court judge, or state magistrate to decide, finally and without a jury trial, the status of an alleged fugitive slave.

 

 

  1. From the colonial period to the Civil War of 1861, the essential features of the slave patrol did not change. Their first purpose was to regulate African people’s movement through space— including those only presumably enslaved, for patrols often checked individuals who claimed to be free Africans for their papers. The other purpose was to invade and disrupt spaces that enslaved people might consider were their own: cabins and social gatherings such as funerals or African- inspired holiday celebrations. The ostensible reason for this aggression was the need to prevent any organization of revolts and rebellions. Yet the process was also supposed to remind enslaved people that their only protection was total submission.

 

  1. The continuity between the slave patrols in the South and the development of professional police forces that emerged in urban centers was cemented with the concept that Black mobility was to be controlled at all times. As Baptist observed,

 

Collectively the patrols and their dual purposes amount to an official program of active surveillance, one more intense than any free population experienced in the Western world before the emergence of totalitarian states. . . . Over time, as scholars of the emergence of “modern” policing—i.e., state-organized policing that also policed whites, even if not in the same way—remind us, slave patrols were the 18th century predecessors of professional police forces that only emerged in urban centers like New York in the 19th century. Charleston, South Carolina had a professional town police force beginning in the late 18th century. But slave patrollers, though they did not enjoy Fraternal Order of Police contracts, they did extract benefits—some of which extended from them to all white “inhabitants.” [10]

 

  1. Slave Patrols cemented the racial divide because being Black meant that one was presumed to be enslaved, so the law offered punishments for being B Cheryl Harris, in her important work Whiteness as Property, [11] linked white supremacy to the concept of property. Harris concludes that whiteness was tied to two fundamental concepts: the social identity of supremacy and subordinating others. Harris also argues that bourgeois democracy had naturalized whiteness in the U.S. This critique of the property basis for policing and the surveillance of Black people had been vigorously promoted by Africans who opposed the idea that they were considered property or simple chattel. The exploitation and extermination of Native American peoples were similarly accomplished by privileging white possession of land as legitimate property. Laws based on the conflation of race and property further led to the second level of connection between racial groups and private ownership: an actual property interest in whiteness itself. Whites have guarded whiteness as their private property by erasing the history of violence and exploitation against nonwhite people. The ideology has proven powerful precisely because it makes history invisible. By using this ideology, white people have denied the fact that they acquired their white skin privilege through institutionalized oppression.

 

From Slave Codes to Black Codes

 

  1. In the book, Black Reconstruction in America, W. E. B. Dubois explained how legal struggles over the Fugitive Slave Act of 1850 and the Dred Scott decision[12] of 1857 forced the question of the citizenship and the rights of the free Black people. The small war in Kansas (initiated by the forces opposed to the expansion of slavery), the activities of the Underground Railroad, and the militancy of the abolitionists made the question of ending slavery the number one issue in U.S. society. As a coercive institution, the U.S. military was torn between the interests of the slave owners in the South and the manufacturers in the North who wanted free labor to purchase industrial goods. DuBois outlined the split in the military, and the extent to which the anti-racist and anti-slavery work of the abolitionists had inspired generals and officers with “abolitionist sentiments.” This split continues to be instructive in the fight against the more conservative factions of the military, who celebrate the conquest of the lands of the people of Mexico and genocide against the First Nations peoples. The idea of white supremacy that lingers in the military is manifest in the reality that in 2021, more than one in five out of those storming the U.S. capital on January 6, 2021 were serving or ex-military forces.[13]

 

  1. The split in the U.S. military ensured that the decisive factor of the Civil War (1861-1865) was the massive rush to the ranks of the military by the former enslaved. These forces shifted the tide of the war and ensured the victory of the Northern Industrialists and the Republican Party. Immediately after the Civil War, the federal government deployed the military to occupy the former Confederate states. The Army reorganized its jurisdictional structure into five geographic military divisions, which included 19 military departments.[14] The military was simultaneously “establishing” law and order under the Reconstruction Act and expanding permanent warfare against the First Nations peoples.

 

  1. The Fourteenth Amendment was passed in June 1866 and ratified in 1868. It was designed to protect the rights of Southern Black people and restrict the political power of former Confederates. The Fifteenth Amendment gave the right to vote to African-American men. With the right to vote, the politics of the U.S. was temporarily altered with a burst of participation by Black males. Armed with the right to vote, to register, and to participate in the official political process, 1,465 Black elected officials held political office in the South over the following decade.

 

  1. In slowly seeking to reestablish political and economic control over Black people, the Black Codes were promulgated in the former confederate states, and the Ku Klux Klan was formed as a paramilitary organization to lynch and oppress Black people. The first Black Codes were enacted in 1865, shortly after the ratification of the Thirteenth Amendment outlawing slavery. The codes were laws that specified how, when, and where the former enslaved could work and how much they would be paid. The system of policing under the Black Codes created a situation in which the impoverished Klan authorities could not feed and house the captive workers who were rented out in the Convict Lease System.[15] The states did not have enough capital to afford keeping inmates within the confines of prison facilities so  the Black Codes became the façade for incubating the system of turning plantations into prisons.

 

  1. Essentially, the Black Codes maintained the de facto structure of slavery without formally labeling it “slavery.” There were the marauding actions of the Klan, and the economy of the South survived with a new form of Black and white economic relationship called sharecropping. As DuBois noted, “the slave went free, stood a brief moment in the sun: then moved back again toward slavery.”[16] The legacies of the Convict Lease system and the prison plantations became a permanent feature of the society. They remain today with the prominent example of the 18,000-acre Angola prison in Louisiana, the poster child for this continuity.

 

  1. The Ku Klux Klan was one of the preeminent organizations to enforce systemic racism, violence and sexual terrorism after 1866. Saturday night parties of lynching, castration, and burning the bodies of Black men concealed the even more profound and widespread rape and violation of Black women. Rape was one of the most forceful expressions of sexual terrorism and white supremacy. This terrorism was pervasive and intense for nearly a century, and served as the basis for the ideological coherence within a system of “racial dominance long marked by forced sex and procreation.”[17] The Klan combined all aspects of policing terror in the history of the U.S: political, economic, racial, and sexual.

 

  1. The Klan dominated the South and for nearly 50 years was a principal power broker in the two dominant political parties in the U.S. The former generals of the Confederacy who coordinated the activities of the Klan wrote the legal statutes that came to be known as the Black Codes. They restricted Black people’s right to vote, circumscribing the movement of Black people how and where they could travel, and where they could live. Because many ex-Confederate soldiers had transitioned to working in policing or elsewhere in the criminal legal system (e.g., as judges), this system, including law enforcement, perpetuated the oppression of people of African descent.

 

  1. The activities of the Klan set the standards for policing Black lives. Political terrorism facilitated the violent disenfranchisement of Black people until the passage of the Voting Rights Act in 1965. The legal ecosystem of this form of oppression was codified into what were called Jim Crow laws and crowned by the 1896 Plessy v. Ferguson[18] decision that legalized segregation. Black people were denied the right to vote by grandfather clauses (laws that restricted the right to vote to people whose ancestors had voted before the Civil War), poll taxes (fees charged to poor Black people), white primaries (only Democrats could vote and only whites could be Democrats), and literacy tests.

 

  1. In the South, the Klan and ideas of the hierarchy of whiteness merged with the general concept of policing throughout the U.S. by the beginning of the 20th Racist ideas flourished in U.S. society with the articulation of the theory that “social characteristics were heritable and deviant behavior was biologically determined.”[19] Biological determinism took hold as the U.S. instituted punitive measures against Black people, justified by state officials on the grounds that there were biologically determined traits that predisposed Black people to criminal activity and “deviancy.” By the end of the 20th century, and coinciding with the War on Drugs, biological determinism buttressed sexualized racism and was reinforced with an all-out war against Black people manifest in the repression that killed any public leader who opposed racism. Martin Luther King Jr., Medgar Evers, Malcolm X, and George Jackson were but some of those killed by the militaristic police.

 

  1. By the end of the 19th century, Manifest Destiny, Social Darwinism, whiteness, and eugenics congealed to fashion a particular brand of white racism. Throughout the 19th and 20th centuries, the growth of U.S. economic, military, and cultural hegemony meant that white people in the U.S. exercised a significant influence on practices and ideologies of anti-Blackness (and other kinds of racism) in various countries.

 

Racism and the Militarization of Policing

 

  1. The political monopoly of the racists in the U.S. system ensured that the Senators in the southern part of the country maintained seniority in the political system and used society’s resources to feed militarization. The history of Benjamin Tillman of South Carolina reveals the extent to which membership in the Klan, political leadership, and racial terror were combined. From his position as a member of the U.S. Senate Committee on Armed Services and Military Affairs and Chairperson of the Committee on Naval Affairs (1913–18), Tillman used his influence to extend the role of the armaments industry and championed the extension of the southern version of Reconstruction. By the time of the Second World War, military bases in the South propped up Jim Crow and reinforced the oppression of Black people. The Cold War deepened the militarization of the U.S. where the scare of communism was not only a pretext for repression, but also a way of smearing any Black leader who opposed racism. The COINTELPRO[20] program exposed this militarism against civil rights leaders and demonstrated how the political system orchestrated the War on Drugs to heighten policing and surveillance, particularly of Black and other disenfranchised people.[21]
  1. Several years after the War on Drugs wreaked unprecedented havoc in Black and Brown communities, John Ehrlichman, former domestic advisor to Richard Nixon, admitted, “We created the War on Drugs to ‘criminalize’ Black people and the anti-war left.” The War on Drugs was another justification for intensifying surveillance and policing of Black and Brown people. Its added benefit was that the War on Drugs boosted militarization at home and abroad. Ehrlichman told a journalist in 1994, “You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black people, but by getting the public to associate the hippies with marijuana and Black people with heroin, and then criminalizing both heavily, we could disrupt those communities.”[22]

 

  1. Gary Webb, in his book, Dark Alliance: The CIA, the Contras, and the Cocaine Explosion, exposed how the deepening militarization of Black communities emerged from the spread of crack cocaine in Black neighborhoods. The War on Drugs accelerated mass incarceration with Black people being defined as the state’s enemy. The destruction unleashed by the War on Drugs has been labeled The New Jim Crow.

 

  1. Militarism at home and abroad became central to the economic and cultural dominance of the U.S. Wars fought abroad are one component of the military management of the world system in which U.S. barons benefit from military forces backing the dollar as the currency of international trade and the militarization of the planet. Billions of dollars were directed towards the U.S. military, police, and prisons while suborning international organizations, such as the International Monetary Fund (IMF), to retain the structures of international finance to perpetuate U.S. dominance. The War on Drugs and the expansion of U.S. militarism merged after the Cold War when ideological management was insufficient to justify the presence of U.S. military personnel and bases throughout the world. The Global War on Terror became one iteration of global militarism that led to formation of the U.S. Patriot Act[23] and the National Defense Authorization Act of 2001 (NDAA).[24] It is no coincidence that under the NDAA, the S. oligarchs allocate their right to fight endless wars and receive the money that funds them. Congress has authorized more than $6 trillion for the endless and failed wars in Afghanistan, Iraq, Syria, Libya, and other parts of the world in the past two decades.[25]

 

  1. S. domestic police forces have also benefited from these endless wars. It is not by accident that via Section 1033 of the NDAA, the Pentagon has distributed $5.4 billion worth of military equipment to police agencies since the law was passed a generation ago. Of that amount, $980 million–or 18 percent–was handed out in 2014 alone. That was the year Michael Brown, Eric Garner, and others were killed and when the Black Lives Matter movement intensified its opposition to police killings.

 

  1. For decades, the Pentagon has been training Special Forces in urban warfare. A report from the American Civil Liberties Union (ACLU) has similarly documented the use of Pentagon-supplied equipment in no-knock home invasions, including police officers driving up to people’s houses in armored vehicles to launch these raids. The ACLU concluded that “the militarization of American policing is evident in the training that police officers receive, which encourages them to adopt a ‘warrior’ mentality and think of the people they are supposed to serve as enemies, as well as in the equipment they use, such as battering rams, flashbang grenades, and APCs [Armored Personnel Carriers].”[26]

 

  1. The 1033 program has resulted in an increasingly militarized law enforcement, which has exacerbated police violence. According to a Research and Politics study, there is “a positive and statistically significant relationship between 1033 transfers and fatalities from officer-involved shootings across all models.”[27] Additionally, a 2018 policy study[28] by R. Street notes that another reason for an increase in violence by a militarized law enforcement is that when issued access to military equipment, police are more likely to use it rather than other more appropriate and traditional law enforcement tools.

 

Race, Police Violence and the U.S. Constitution

 

  1. Like the broader history of the United States, the U.S. Constitution is a document that has been shaped by race and white supremacy and that, in turn, reinforces racism and white supremacy. Nowhere is this truer than in the U.S. Supreme Court’s jurisprudence regarding the power of police to stop, frisk, surveil, and use force against all civilians in general and people of African descent in particular.

 

  1. For example, the Fourth Amendment prohibits “unreasonable searches and seizures” and requires that warrants be supported by probable cause for arrests and searches of people, places, and things. While it could serve as an important bulwark against police violence in Black communities, the Supreme Court has interpreted the Fourth Amendment in a manner that expands state power to inflict violence against Black people. In a series of cases beginning with Terry v. Ohio,[29] the Court created permissive standards for police to stop and search individuals they encounter in the community.

 

  1. In Terry, the Court held that officers can stop an individual when they have “reasonable suspicion” to believe the person has committed a crime or is about to commit a crime and may conduct a limited pat down (frisk) if the officer has “reasonable suspicion” that the person is armed and presently dangerous to the officer or others. Although the Terry court stated that reasonable suspicion is more than a “hunch” and instead requires an articulable, reasonable basis for suspicion, this standard, however ill-defined, gives police nearly unfettered power to stop people whom they believe to be criminals based on little or no evidence. Indeed, courts have found that an officer has reasonable suspicion to conduct a stop based on traffic and non-criminal infractions when an individual appears “out of place” or runs from the police, particularly in a high crime neighborhood. Courts have upheld stops and searches of individuals based on the fact that they were standing still or walking too quickly, or because they “appeared nervous” or evaded the gaze of police. Such a broad standard is an invitation for arbitrary and biased policing, which disproportionately impacts marginalized individuals and communities. In many ways, this is analogous to the power the 1793 Fugitive Slave Act gave to any federal or state judge to unilaterally determine the status of an alleged fugitive slave.

 

 

  1. Black and Latino men, for example, are viewed as more likely to engage in criminal behavior and such stereotypes, in turn, justify police regulation and surveillance of their movements and their bodies. Black women’s bodies have been associated with sexual deviance, poverty, crime, and a host of other social ills.[30] Native American women have been cast as the intergenerational propagators of corrupt cultural practices.[31] These sorts of stereotypical images and assertions disadvantage women of color by “creat[ing] an interlocking mythology with political implications.”[32] Such stereotypes often lead police to target people of African descent and justify judicial findings of “reasonable suspicion.” This form of “racial profiling” has operated in the U.S. without constitutional scrutiny. Instead, the Supreme Court has allowed law enforcement to use race as a factor in identifying individuals who are suspicious and therefore subject to police surveillance or interrogation. Two cases, S. v. Brignoni-Ponce[33] and Whren v. United States,[34] exemplify this trend in Fourth Amendment jurisprudence.

 

  1. In Brignoni-Ponce, the Court held that it was a violation of the Fourth Amendment to rely exclusively on race as a basis for establishing reasonable suspicion in the context of a roving immigration patrol. [35] Nevertheless, the Court asserted that race may be used as a factor in reasonable suspicion determinations.[36] Permissibility of the use of race in police investigations and findings of reasonable suspicion was further expanded by the Court in Whren v. United States.

 

  1. In Whren, the Court upheld a traffic stop of two young Black men, rejecting the idea that courts should be concerned about the “subjective” beliefs of the officers, even if they are racially motivated. In reaching this conclusion, the Court noted that its precedent “foreclose[d] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”[37] Instead, the Court held that if the officers had probable cause to believe a traffic infraction had occurred, even if a reasonable officer would not have stopped the driver absent some additional law enforcement objective, then a stop would not be found to run afoul of the Constitution.[38] Such a stop would be upheld even if the officer was subjectively motivated to make the stop based on the race of a motorist. The Whren decision thus enabled reasonable law enforcement objectives to serve as pretextual justification for race-based suspicion. In so doing, the Court invested significant discretion in the hands of police officers regarding what constitutes suspicion and which racial subjects should be seen as suspicious. The Court’s failure to apply the Fourth Amendment to this form of racialized assessment of suspicion increased what Devon Carbado calls the “racial vulnerability” of Black and Brown people to police stops and searches.[39]

 

  1. The Court’s decisions in Brignoni-Ponce and Whren also affected the ability of people of African descent “to move freely about their city and to visit white neighborhoods.”[40] Indeed, the link between race and suspicion attaches not only to bodies but to spaces, as racialized people have been found to face increased levels of “stop[s] and search[es] when they are racially out of place.”[41] Even in the context of the Fourteenth Amendment—the doctrinal vehicle for race-based discrimination claims—racial incongruity has been upheld as a basis for suspicion.[42] The Court’s sanctioning of the use of race as a basis for suspicion to engage in pretextual stops that rely upon race and racialized policing of space, provides the doctrinal grist for a broad regime of racial profiling that renders Black and Brown people criminalizable at the discretion of law enforcement.

 

 

  1. The Fourth Amendment also prohibits unreasonable “seizures” of individuals. Like the Supreme Court’s jurisprudence on race and police stops, the Court has interpreted the Fourth Amendment in ways that grant police expansive powers to use force against civilians who are disproportionately Black, poor, and disabled. In other words, the Court has constructed a jurisprudential regime that empowers the state and leaves vulnerable communities to bear the brunt of state violence.
  1. In Tennessee v. Garner, the Court held that the Fourth Amendment prohibits the use of deadly force by police when faced with a “fleeing felon.”[43] The Court, however, created an exception to this bright-line rule if law enforcement officials can demonstrate that they have probable cause to believe that the individual poses a danger to the officer or the public, or that the individual committed a crime involving the infliction or threatened infliction of serious physical harm. The Court continued this permissive posture toward the use of force by law enforcement officials in Graham v. Connor.[44]

 

  1. In Graham v. Connor, the Court held that the use of force by police must be “objectively reasonable” in light of a number of factors including the nature of the crime the individual is suspected of committing, whether they are resisting or attempting to evade the officer, and whether the individual poses an immediate threat to the safety of officers or others. Significantly, officers do not have to be correct about their assessment of the need to use force; their fear need only be reasonable, even if incorrect.

Race and the Fourteenth Amendment

 

  1. The Equal Protection Clause of the Fourteenth Amendment[45] prohibits state-sponsored racial discrimination. Given how race has so thoroughly pervaded police practices generally and use of force particularly, one would think that this is precisely the kind of discrimination that is constitutionally impermissible. The Court, however, has interpreted the Equal Protection Clause in such a manner as to foreclose any meaningful regulation of racially disparate police use of force.

 

  1. In a series of cases, the Court has ruled that racially disproportionate impact alone is insufficient to establish a Fourteenth Amendment violation. In Washington v. Davis, [46] Black police officers sued the District of Columbia Metropolitan Police Department, alleging that the standardized test used for hiring and promotion had a discriminatory impact on African-Americans. The plaintiffs argued that the high cutoff for the promotion score was a proxy for race given the broader racial disparities in educational attainment. Further, the plaintiffs maintained that the racial disparity was not justified by business necessity because the testing instrument had not been validated. The Court rejected their claim, instead ruling that litigants must present evidence of intentional discrimination to establish a violation of the Equal Protection Clause.

 

  1. The Court’s decision in Davis has had a pernicious effect on the ability of the Constitution to limit racial disparities in the context of the criminal legal system. In McClesky v. Kemp,[47] for example, the Court considered a Fourteenth Amendment challenge to the administration of the death penalty brought by Warren McClesky, a Black man sentenced to death in the state of Georgia. In support of the challenge, McClesky presented the findings of a study conducted by David Baldus, Charles Puleski, and George Woodworth (“Baldus Study”)[48] that analyzed approximately 2,000 death penalty cases in Georgia from 1970 to 1980. After taking 39 non-racial variables into account, the Baldus Study found significant racial disparities in the imposition of the death penalty. For example, the study determined that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than those who killed Black victims. Most strikingly, the study concluded that Black defendants who killed white victims were 22 times more likely to be sentenced to death than Black defendants who killed Black victims. While the Court did not dispute the Baldus Study’s finding of racial disparity, it nevertheless rejected McClesky’s claim citing the absence of proof of intentional discrimination or the explicit use of racial classifications in his particular case.

 

  1. Implicit in the Court’s intent-based, anti-classification equal protection jurisprudence are several assumptions about how racial discrimination functions. First, race must be used explicitly; if a policy or practice is facially neutral, any racial disparity associated with said policy must be intended. Second, social inequality may render individuals vulnerable to state violence without running afoul of the Constitution. Third, racial disparities are insufficient to establish a constitutional violation.

 

From the Past to the Present

 

“Perhaps if I had not killed him, he would have killed me.” —Moses Riggs, 1770

 

  1. On the morning of November 9, 1770, in Accomack County, Virginia, a seven-year-old Black boy, Stepney, was playing on the road when he was brutally beaten to death by Moses Riggs. When brought before the judge and questioned as to why he had killed the boy who could not have offended him by word because he could not speak or by actions because he was too small, Riggs responded to the judge, “Perhaps if I had not killed him, he would have killed me.”[49] This justification for the killing of Black people has been routine in the U.S. for more than 300 years and has been one of the prime justifications for police killings: that those who kill Black people were acting in de facto self-defense. Even more egregious has been the use of the self-defense narrative by police to justify the killing of Black children and youth in the U.S.

 

  1. Fast forward to November 22, 2014 when 12-year-old Tamir Rice was shot and killed while he was playing with a toy gun in a park in Cleveland, Ohio.

 

  1. The continuity of the self-defense narrative can be seen in the majority of the cases heard by the Commissioners. The historical evidence demonstrated that while whiteness was implicated in the genocidal history of the U.S., the refinement of the ideation systems of white supremacy accelerated with enslavement and Jim Crow. From the Slave Patrols to the Convict Lease System, to the KKK, the ideas of controlling the bodies and movements of Black people became generalized in the society and were linked to the mode of capital accumulation in the U.S., or put differently, the U.S. business model. Police departments throughout the U.S. were trained in the ideas of white supremacy, with police forces and the discipline of criminology becoming infused with eugenic ideas.

 

  1. The unbroken links between the genocide of First Nations peoples, enslavement of Africans, terror of the Ku Klux Klan, Jim Crow violence, the War on Drugs, COINTELPRO, and the current militarization of U.S. society have been obscured by the ideation system of liberty and freedom that masked the depth of the violence and dehumanization. The recent uprisings against police violence have brought fresh attention to the roots of racist policing and the killings of innocent Black and Brown peoples. Societal ideas about white supremacy and security ensure that Black people are being policed in ways similar to the era of Slave Patrols when control over the bodies and movement of Black people was central to the stability of capital accumulation.

 

  1. Since the popularization of the 1619 Project[50] and a more precise understanding of the role of chattel slavery in the U.S. economy, the academic and political establishment has issued a sharp denial of the reality of systemic racism in the United States. This denial has given rise to the narrative that police violence can be attributed to a “few bad apples.” That phrase has become a defense for police misconduct. Politicians and the corporate media used the formulation “rogue cops” after the Rodney King beating in 1991, the 2014 fatal shooting of Michael Brown, the fatal shootings of Alton Sterling and Philando Castile, and are doing so now in the midst of protests over the killings of Breonna Taylor and George Floyd.

 

  1. The Findings of Fact disprove the notion that weeding out rogue police officers will end the epidemic of police violence against people of African descent in the U.S. These factual findings are based on hearings featuring representatives of victims in 44 different cases as well as supporting statistical evidence. They provide compelling evidence of the systemic racism, police violence, and structural racism wielded against people of African descent in the United States.

 

  1. The chart below lists (in alphabetical order) the cases heard by the International Commission of Inquiry between January 18 and February 6, 2021, noting the attorney(s), family/community member(s), and students who presented each case. Following the chart are brief descriptions of each case. Fuller descriptions of the cases can be found in Appendix 1.

 


[1]  Frantz Fanon, Racism and Culture, in Toward The African Revolution 29 (Grove Press, New York, 1964).

[2]  Edward E. Baptist, Forging the Zip Ties, in Predators and Prey: Racialized Policing and Resistance in U.S. History, (unpublished manuscript) (on file with the author) (hereinafter “Forging the Zip Ties”).

 

[3] Id.

[4] Id.

[5] See W.E.B. Dubois, Black Reconstruction in America: An Essay Toward a History of the Part Which Black Folk Played a Part in the Attempt to Reconstruct America, 1860-1880 (Free Press, 1997 edition, 1998) (made the argument that enslavement “shaped every crucial aspect of the economy and politics) (hereinafter “Black Reconstruction in America); See also Edward E. Baptist, The Half Has Never Been Told: Slavery and the Making of American Capitalism (New York: Basic Books, 2014) (deepened the argument that enslavement shaped U.S. economy and politics) (hereinafter “The Half That Has Never Been Told”); See also Olivia Paschal & Madeleine Carlisle, Read Ta-Nehisi Coates’s Testimony on Reparations, The Atlantic (June 19, 2019), https://www.theatlantic.com/politics/archive/2019/06/ta-nehisi-coates-testimony-house-reparations-hr-40/592042/ (most explicit rendering of the argument).

[6] See Edward E. Baptist, Toward a Political Economy of Slave Labor, in Slavery’s Capitalism: A New History of American Economic Development (Sven Beckert and Seth Rockman, Philadelphia: University of Pennsylvania Press, 2016) (there is among economic historians a fierce debate over what percentage of total wealth was represented by slave property, though estimates are in a fairly narrow range (between 12 and 18% of total wealth). In terms of assets, Land was the largest percentage of the wealth of the society, and of course, 100% of the land was taken by violence from Indigenous people).

[7]  The Half That Has Never Been Told, supra. n. 28

[8]  Sally E. Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas (Harvard Historical Studies, Cambridge, MA: Harvard University Press, 2001).

[9]  History.com Editors, Fugitive Slave Acts, History.com (last accessed March 15, 2021), https://www.history.com/topics/black-history/fugitive-slave-acts.

[10]  Forging the Zip Ties, supra n. 25

[11]  Cheryl Harris, Whiteness as Property, 134 America Harvard L. Rev. 1 (2020).

[12]  Dred Scott v. John F.A. Sandford, 60 U.S. 393 (1857) (U.S. Supreme Court ruled, 7–2, that an enslaved person (Dred Scott) who had resided in a free state and territory (where slavery was prohibited) was not thereby entitled to his freedom, and that African-Americans were not and could never be citizens of the United States).

[13]  Tom Dreisbach & Meg Anderson, Nearly 1 In 5 Defendants in Capitol Riot Cases Served In The Military, National Public Radio (Jan. 21, 2021), https://www.npr.org/2021/01/21/958915267/nearly-one-in-five-defendants-in-capitol-riot-cases-served-in-the-military.

[14] The Army was to reestablish law and order, ensure the public health and welfare, and supervise the return to normal economic activity. The Army had the additional responsibility of protecting the well-being of the Freedmen through the newly created Bureau of Freedmen and Abandoned Lands that Congress established and mandated that the War Department operate.

 

[15] The Convict Lease System was created at the end of slavery to provide a justification for prisoners to be leased by several states to private industries for cheap labor. The states did not have enough capital to afford to keep inmates within the confines of prison facilities. So they were outsourced to do work for railway contractors, mining companies, and large plantations in need of cheap hands for farming. Markets for convict laborers flourished, with speculators buying and selling convict labor leases. Unlike enslavement, employers had only a small capital investment in convict laborers, and little incentive to treat them well. Convict laborers were dismally treated, but the convict lease system was highly profitable for the states and the employers.

[16] Black Reconstruction in America, supra. n. 28

[17] Lisa Cardyn, Sexualized Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South in the Reconstruction South, 100 Michigan L Rev. 4 (2000).

[18]Plessy v. Ferguson, 163 U.S. 537 (1896) (a landmark U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine. The case stemmed from an 1892 incident in which African-American train passenger Homer Plessy refused to sit in a car for Black people. Rejecting Plessy’s argument that his constitutional rights were violated, the Supreme Court ruled that a law that “implies merely a legal distinction” between white people and Black people was not unconstitutional. As a result, restrictive Jim Crow legislation and separate public accommodations based on race became commonplace).

[19] Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 61 (Vintage Books 1997).

[20] COINTELPRO (syllabic abbreviation derived from Counter Intelligence Program) (1956- unknown) was a series of covert and illegal projects conducted by the U. S. Federal Bureau of Investigation (FBI) aimed at surveilling, infiltrating, discrediting, and disrupting progressive political organizations. FBI records show COINTELPRO resources targeted groups and individuals the FBI deemed subversive, including feminist organizations, the Communist Party USA, anti–Vietnam War organizers, activists of the Civil Rights Movement or Black Power movement (e.g. Martin Luther King Jr., the Nation of Islam, and the Black Panther Party), environmentalist and animal rights organizations, the American Indian Movement (AIM), independence movements (such as Puerto Rican independence groups like the Young Lords), and a variety of organizations that were part of the broader New Left.

[21] Graham Boyd, The Drug War is the New Jim Crow, NACLA Report on the Americas (2007), https://nacla.org/article/drug-war-new-jim-crow

[22] Frida Garza, Nixon advisor: We created the War on Drugs to “criminalize” Black people and the anti-war left, Quartz (Mar. 23, 2016), https://qz.com/645990/nixon-advisor-we-created-the-war-on-drugs-to-criminalize-black-people-and-the-anti-war-left/.

[23] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. 115-272 (2015).

[24] National Defense Authorization Act of 2001 (NDAA), Pub. L. 107-107 (2001).

[25]  Neta C. Crawford, United States Budgetary Costs and Obligations of Post-9/11 Wars through FY2020: $6.4 Trillion, Watson Institute of International and Public Affairs, Brown University (2019).

[26] ACLU, WAR COMES HOME: The Excessive Militarization of American Policing, (2014), https://www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf.

[27] Casey Delehanty, et al., Militarization and police violence: The case of the 1033 program, Research and Politics (2017).

[28] David Bahr, R Street Institute police study: Police should be armed like Batman, not G.I Joe, R Street (Mar. 28, 2018), https://www.rstreet.org/2018/03/28/r-street-institute-policy-study-police-should-be-armed-like-batman-not-g-i-joe/.

[29] Terry v. Ohio, 392 U.S. 1 (1968).

[30] Daniel Patrick Moynihan, The Negro Family: The Case for National Action (Office of Policy Planning and Research, United States Department of Labor, 1965).

[31]  Rebecca Tsosie, Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights, 34 Ariz. St. L.J.  299, 319 (2002).

[32] Id. at 49.

[33] United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

[34] Whren v. United States, 517 U.S. 806 (1996).

[35] Brignoni-Ponce, 422 U.S. at 887.

[36] Id.

[37] Whren, 517 U.S. at 813.

[38] Id. at 812-814.

[39] Devon Carbado, (E)racing the Fourth Amendment, 100 Mich L. Rev. 946, 976 (2002).

[40] Evan Gerstmann, Where Is Equal Protection? Applying Strict Scrutiny to Use of Race by Law Enforcement, 29 Harv. J. Racial & Ethnic Just. 1, 12 (2013).

[41] Id.

[42] Brown v. City of Oneonta, 195 F.3d 111 (2nd Cir. 1996)

[43] Tennesee v. Garner, 71 U.S. 1 (1985).

[44] Graham v. Connor, 490 U.S. 386 (1989).

[45] U.S. Const. amend. XIV, cl. 1.

[46] Washington v. Davis, 426 U.S. 229 (1976).

[47] McCleskey v. Kemp, 481 U.S. 279 (1987)

[48] Baldus, Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim L. & C. 661, 674, n. 56 (1983).

[49] Edward E. Baptist, Forging the Past, (chapter in forthcoming manuscript on the history of policing in the United States) (on file with author).

[50] See Nicole Hannah- Jones, The 1619 Project, New York Times (Aug. 17, 2019), https://www.nytimes.com/interactive/2019/08/14/magazine/1619-america-slavery.html (In 2019, the New York Times launched a series of articles to mark 400 years of the Black presence in the United States).

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