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Race was invented right here in the Chesapeake—in Virginia, to be exact. For two decades after the English Civil Wars ended and King Charles II was restored to the throne, he used the Chesapeake colonies as a dumping ground for England’s unwanted radicals. For several generations, meanwhile, Virginia and Maryland had been filling up slowly with African slaves. Add the ever-present Indians, and the English gentry was becoming even more outnumbered than usual.

In 1676, Bacon’s Rebellion erupted. This was essentially a border war waged by Nathaniel Bacon, an Indian-killer and genteel rival of the colony’s governor, William Berkeley. The height of the rebellion came when Bacon sacked Jamestown and installed himself as its ruler, forcing Berkeley to flee across the Chesapeake Bay. Bacon’s army included not just white indentured servants but their fellow laborers-in-bondage, the Africans.

There had never been a large number of Africans in Virginia to that point, and the original ratio was about four white rebels for every one black rebel. They meant to dismantle much of the power of the colony’s elites, and for a brief moment it looked as if they would actually manage it. A few months into the conflict, Bacon promised both freedom and land to servants and slaves.

But then he suddenly died, leaving his motley army leaderless. King Charles thought Berkeley was a royal screwup and dispatched Thomas Grantham as the king’s negotiator. Grantham arrived with a portion of the Royal Navy to find a seriously dwindled rebel force. Right there on the James River, he called out an offer to the white rebels: Desert your black comrades and you will go free, with full pardons. In an act of treachery and cowardice which has lived with us ever since, most of the whites complied. Only about 80 rebels remained when Grantham swept the last of their ships, in nearly reversed ratios of white to black.

To make sure they never again faced uprisings of both poor whites and enslaved blacks, the Virginia burgesses wrote the infamous Slave Codes. These regulated slaves’ interactions with whites, banned miscegenation, and—most importantly—defined slavery as a socioeconomic category dependent on one’s skin color. Only blacks could be enslaved; everyone else (including Indians) was subject merely to indenture. Only people with black skins could be forever owned like machinery or cattle, and transmit that wretched status to their children. The Virginia model quickly spread to the other British colonies; it gave birth to the very concept of race.

So this is where it started. In hopes that it might end here too, I went to Baltimore City Hall Saturday night, where I locked arms with protestors of all colors, stood on the front lines pushing back against the riot police, trying my damnedest to reverse that Baconian ratio back to its original position.

Well, now I know what it’s like to be tear gassed.

I won’t belabor the history of race in the Americas anymore, nor will I bore you with all my reasons for joining in the protests. Suffice to say that I’m as sick of abusive policing as anyone else who tries their best to be good and decent. And the fact that police abuse falls most heavily on black Americans hits home for me: I married into a black family, I have a black son roughly the same age that Tamir Rice was when the police murdered him, and we all live in downtown Baltimore. My wife and I are always a little scared when our son goes outside to play. These atrocities have to stop, and we have to stop them.

I knew that a series of marches was going to converge on the Inner Harbor and that the ultimate plan was to form up in mass at City Hall. After my son ate dinner, I changed out of the Aristotle (“Private Property”) shirt I’d been wearing all day and put on my much more fitting Albert Jay Nock (“Our Enemy the State”) shirt. I masked up and set out on a long walk to join in. 

I arrived at City Hall at about 7:30, when the crowd was still fairly small. A line of police had formed behind metal barricades in front of the building. For the next 90 minutes or so, I alternately stood there staring stone-faced at the cops a few feet from me, walked the lines telling maskless officers to do what their precious governor ordered and mask up, and generally got out my anarcho-individualist steam by imploring them to find decent employment.

In their half-assed attempts to talk with the crowd and hear our pleas, one of the higher-ups claimed he was doing his job because he supports democracy—which, apparently, means we the people doing what they the police tell us to do. He asked what I do for a living and I responded that I’m an historian.

“So, what, do we just get rid of all the police?” he asked.

“Well, yes, of course we do,” I said. “I’m an abolitionist.”

I told him flatly that the best thing he could do for the democracy he claimed to love so much was to quit the police union and quit the force. He seemed like a decent and sincere person, but frankly that’s not good enough. He walked away to talk to people more willing to hear him out and listen to his authority.

Later, another higher-up arrived in his squad car, bursting out of it with the usual bluster and walkie chatter. He wasn’t wearing a mask, so I told him to comply with the governor’s orders and mask up. Many of the officers I said this to did in fact mask up then and there. Others stared back at me blankly. This one laughed and pointed to a group of young black women behind me without masks. “What about them?” he asked.

I shot back: “Dude, you’re supposed to be law enforcement. How about you do your job, set the example, and at least follow all the stupid laws you try to hold us accountable for?”

He laughed again, but he was getting mad. I was getting mad too. “I bet you’re just itching for the chance to kill someone’s kid out here tonight,” I told him.

I didn’t expect his reply. “Oh, you bet I am,” he said.

The third officer I’ll mention was a young black woman standing near me. She was mainly looking at the ground, obviously trying to avoid eye contact with protestors. A black protester started talking to her, person of color to person of color. She would neither answer him nor look at him. He pointed out that she is someone’s daughter, and might be someone’s sister, and perhaps has children herself who will soon be in the police’s firing line. I turned then and told them what the higher-up had said to me about itching to kill a kid tonight.

She left the line, went behind the nearest cruiser, and visibly shed tears for several minutes.

Early on, some protestors smashed up a police car, spray-painted “FTP” and the like on nearby cruisers, and lobbed water bottles across the lines—which spooked the small number of officers quite a bit. But when the main contingent of marchers arrived, the situation broke loose. The officers on the scene immediately scrambled to distribute tactical gear and form up for battle. A few minutes later, the riot police arrived, shields and all.

First came the tear gas, unannounced, fired straight at us. (My mask and glasses kept most of it out, but it stung my lungs.) What followed was like witnessing a Greek phalanx moving to war, the rapping of nightsticks on riot shields. A line of us met them head on. “MOVE BACK” they shouted with every rap on their shields. A young woman next to me was trapped between a metal parking lot bar and the riot shields. I pushed the closest officer back enough that she could get herself loose and flee. The next officer over reached out and grabbed me, presumably to arrest me for “assaulting an officer” or something. They ripped that Albert Jay Nock shirt and tore off my mask and glasses, but I managed to wriggle free and to scurry back to the field of protestors.

I was able to find my mask and glasses again, and the rest of the night was—for me, at least—far less storied. I did my best to stay at the front of the line no matter what, whether standing up to riot police or just putting myself first in the potential firing line.

I implore all of you: Figure out which side you’re on, and do it quickly. If you are unwilling to do whatever you can to stop these injustices, then they are all the more likely to continue unabated. If we who hate the state are unwilling to actually dismantle it, if we who have layer after layer of privilege going right the way back to those tactical Slave Codes are unwilling to put ourselves at risk, then the state will kill more of our children, our parents, our friends, our fellow beings. We have to undo that grand act of treachery and betrayal on the James River, that first deal with the white supremacist state where relatively powerless whites abandoned their black compatriots.

“When the people fear the government,” Thomas Jefferson supposedly said, “there is tyranny; when the government fears the people, there is liberty.” Whether or not he actually said that, the statement rings true. Staring at those cops Saturday night, I saw it in face after face. They’re scared.

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The brutal recent killing of African-American George Floyd by a Minneapolis police officer has sparked outrage at police abuses, and led to rioting and looting in many cities around the country. It’s understandable if many people—particularly minorities—feel a sense of anger, frustration, and hopelessness in the wake of these events, which come in the midst of a terrible pandemic. I sometimes feel that way myself.

But there is much that can be done to curb police abuses. The task is difficult, but far from hopeless. On the other hand, rioting and looting are not only wrong in themselves, but likely to have counterproductive effects.

I. What Can be Done

All too often, police get away with brutal treatment of civilians, particularly poor minorities. The problem is not that police officers are unusually bad people. It’s that they have bad incentives, under which they are rarely held accountable for abuses. Those incentives can and should be altered.

An important first step would be to get rid of the legal doctrine of “qualified immunity,” under which law enforcement officers are immune from suits for violating citizens’ constitutional rights unless the officers’ actions violate “clearly established” law. The Supreme Court interprets the term “clearly established” so narrowly that officers routinely get away with horrendous abuses merely because no federal court in their area has previously decided a case with essentially identical facts. Recent examples include stealing $225,000 from civilians and shooting a 10 year old boy in the course of an attempt to shoot the family dog (who posed no threat to the officer).

Qualified immunity is not required by the Constitution or even by a federal statute. It is a purely judge-made doctrine made up by the Supreme Court itself in a misguided effort to protect law enforcement officers from excessive litigation.  University of Chicago law professor and Volokh Conspiracy co-blogger Will Baude explains why the doctrine lacks any valid legal basis in this excellent article.

The Court is right now considering taking several cases whose consideration could lead to the abolition or at least the narrowing of qualified immunity. Both Justice Clarence Thomas, the Court’s most conservative member, and Justice Sonia Sotomayor, the most liberal, have been severely critical of qualified immunity. There is a real chance they can persuade at least three of their colleagues to take the same view.

Rolling back qualified immunity will not put an end to all police abuse. But it will make it possible to hold police accountable in court for egregious violations of civil rights, which in turn will alter their incentives.

Co-blogger Jonathan Adler rightly warns that state and local governments might respond by indemnifying police officers for the damages they have to pay in such cases. But even if that happens, it would still be a step in the right direction. Indemnification costs money that many local governments will be loathe to pay. They will therefore have an incentive to crack down on abusive officers, particularly repeat offenders who routinely force authorities to pay out large sums to settle claims.

As Adler also explains, empirical research shows that impunity for police abuses is often promoted by police unions. State and local governments should consider banning police unionization, or at least curbing unions’ powers by, for example, eliminating disciplinary issues from the list of matters that are subject to collective bargaining. Whatever the merits of public-sector unions in other contexts, they create too much of a conflict of of interest in the case of employees who often literally wield the power of life and death over civilians.

Abolishing police unions or even limiting their power will not be easy. But progress is possible if liberal civil liberties advocates  can work together with conservatives who dislike public sector unions more generally.

Police abuses can also be curbed by rolling back—and eventually abolishing—the War on Drugs. Many of the worst police tactics and most dangerous confrontations with civilians (especially minorities in urban areas) are products of the War on Drugs. In his important book The Rise of the Warrior Cop, Radley Balko shows how the War on Drugs has been a major driver of the militarization of police, and of hyper-aggressive tactics that routinely lead to violence and abuse.

The recent trend towards legalization of marijuana in many states is a good start. We should build on that and begin cutting back on the rest of the War on Drugs, as well. In 2011, the NAACP called for an end to the War on Drugs because it causes great harm to minority communities. Police abuse is a major part of that harm.

Finally, we can also reduce police abuse and improve relations between law enforcement and minority communities by curbing the widespread practice of racial profiling. A 2019 Pew Research Center poll found that some 59% of black men and 31% of black women say they have been unfairly stopped by police because of their race.

Almost every black male I know can recount experiences of racial profiling by law enforcement. Admittedly, the people I know are not a representative sample. But given that I am a law professor, my African-American acquaintances are disproportionately affluent and highly educated. Working-class blacks likely experience racial profiling even more often.

If you don’t trust survey data or take the word of my friends and acquaintances, take that of conservative Republican African-American Senator Tim Scott, who has movingly recounted multiple incidents in which he was racially profiled by Capitol Hill police. Even being a powerful GOP politician is not enough for a black man to avoid such mistreatment. It is not hard to see how racial profiling increases the risks of violence between police and racial minorities, and more generally breeds hostility between the two groups.

Reducing racial profiling is a very difficult task. In many cases, it is hard to tell whether it really occurred or not. The issue likely deserves a post of its own, which I hope to find time to do  in the future.

For now, I will only emphasize that this is an issue we cannot afford to ignore. This is particularly true for conservatives who—rightly—advocate color-blind government policies in other contexts. For many years, I have repeatedly argued that color-blindness advocates on the right must not turn a blind eye to racial profiling in law enforcement. If you truly believe that government should not discriminate on the basis of race, you cannot tolerate a glaring exception to that principle when it comes to those government officials who carry badges and guns, and have the power to kill, injure, and arrest people. Otherwise, your position will be glaringly inconsistent, and many will suspect that your supposed concerns about discrimination only arise when whites are the victims, as in the case of affirmative action programs.

The reforms described here may not be easy to achieve. But they are feasible. Qualified immunity and the War on Drugs have already come under serious challenge, and there is room for plenty of additional progress.

We can also learn from the increasingly successful campaign to curb abusive asset forfeiture, the practice under which law enforcement can seize the property of (often innocent) civilians -a practice that, like police brutality, disproportionately harms minorities and the poor. Thanks to the efforts of a cross-ideological coalition of reformers, including libertarians, liberals, and even some conservatives, many states have enacted reform laws, and courts have begun to crack down on the practice. Much remains to be done to fully address the problem of asset forfeiture abuse. But the progress achieved so far can be a model for other efforts to curb law enforcement

II. Why Rioting is Not the Answer

Much can be done to roll back abusive law enforcement practices. The ideas described above are far from exhaustive. But one tactic that must be avoided is the kind of rioting and looting that has occurred over the last few days. Such actions are not only wrong in themselves, but also likely to be counterproductive.

Most of the damage caused by rioting is inflicted on innocent people who are in no way responsible for police abuses. Destruction and looting of stores and other businesses not only hurts the owners and employees of those enterprises, but also impoverishes the broader communities of which they are a part. Violence and violation of property rights reduce investment and economic development, which predictably exacerbates the poverty of minority inner-city neighborhoods.

It may be tempting to say that rioting and other similar violence is justified if you are doing it in the name of a just cause. But even people with legitimate grievances must still observe moral limits on tactics they use to pursue them. Ignoring this principle is a recipe for disaster.

Many of the worst atrocities in world history were perpetrated by groups who themselves had legitimate grievances. Soviet communists had legitimate complaints about the injustices of czarist Russia. Their disregard for moral constraints still contributed to mass murder on a horrific scale.  German nationalists in the 1920s and 30s had legitimate grievances about the injustices of the Treaty of Versailles. That in no way justifies what they did in response. Being a victim of injustice cannot be a license to perpetrate injustices on others, especially people who did not perpetrate the wrongs you suffered.

Obviously, currently ongoing riots are nowhere near as bad as the actions of the Nazis and communists. But the same general principle applies: we should be wary of perpetrating new evils in the name of addressing the old.

It is admittedly possible there are situations where committing a wrong is the only way to address an even greater injustice. But this is not such a case.  There are more constructive ways to curb police abuses. Moreover, rioting is likely to make the problem worse, rather than better.

Rioting and other violent racial protests in the 1960s not only failed to curb police abuses, but actually boosted support for “tough on crime” politicians who advocated giving cops more of a free hand. When white swing voters see riots on TV, many of them react by supporting harsh tactics to restore “law and order.” Such reactions may be wrong. But they are predictable and difficult or impossible to avoid.

In 1968, Martin Luther King, Jr. warned that “riots are socially destructive and self-defeating” and that, “[e]very time a riot develops, it helps George Wallace.” Today, they are likely to give a boost to Donald Trump and other politicians who support cruel law enforcement tactics. We would do well to heed King’s warning. Pursuing reform by peaceful means is both more just and more likely to be effective than resorting to violence against innocent people.

 

 

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Derek Chauvin, the former Minneapolis police officer who was arrested on Friday in connection with the death of George Floyd, faces two charges as a result of that incident: third-degree murder and second-degree manslaughter. Floyd’s family argues that Chauvin should have been charged with first-degree murder. The distinction hinges on Chauvin’s state of mind as he pinned Floyd to the ground with a knee on his neck, which he continued to do even as Floyd complained that he could not breathe, even after Floyd stopped speaking or moving, and even after another officer reported that he could not detect a pulse.

The May 25 incident, which sparked protests across the country, began when someone called 911 to report that a man had used a counterfeit $20 bill for a purchase at Cup Foods, a restaurant on Chicago Avenue. Shortly after 8 p.m., Officers Thomas Lane and J.A. Kueng arrived at the restaurant, where employees reported that the customer who had made the purchase was sitting in a car parked nearby on 38th Street. Lane and Kueng found Floyd sitting in the driver’s seat and ordered him, then pulled him, out of the car. According to the criminal complaint against Chauvin, which is based largely on body camera video of the incident, Floyd “actively resisted being handcuffed” but “once handcuffed…became compliant and walked with Officer Lane to the sidewalk and sat on the ground at Officer Lane’s direction.”

The complaint says Lane asked for Floyd’s name and identification, asked if he was “on anything,” and informed him that he was under arrest for passing a counterfeit bill, a misdemeanor when the offense involves merchandise worth no more than $1,000. When Lane and Kueng stood Floyd up and tried to walk him toward their squad car, the complaint says, he “stiffened up, fell to the ground, and told the officers he was claustrophobic.” At this point Chauvin and Officer Tou Thoa arrived at the scene in a separate squad car.

According to the complaint, the officers repeatedly tried to get Floyd into Lane and Kueng’s car. The complaint says Floyd “did not voluntarily get in the car and struggled with the officers by intentionally falling down, saying he was not going in the car, and refusing to stand still.” While standing outside the car, Floyd “began saying and repeating that he could not breathe.” About five minutes after Lane and Kueng intially tried to put Floyd in their car, Chauvin pulled Floyd “out of the passenger side of the squad car.” Floyd “went to the ground face down and still handcuffed.” As Kueng held Floyd’s back and Lane held his legs, Chauvin “placed his left knee in the area of Mr. Floyd’s head and neck.”

Chauvin kept his knee on Floyd’s neck for nearly nine minutes. “I can’t breathe,” Floyd repeatedly said. “Please,” he pleaded more than once. “Mama,” he cried out. CNN legal analyst Elie Honig, a former state and federal prosecutor, notes that Floyd also can be heard saying “don’t kill me” and “I’m about to die” in video of the incident, although the complaint omits those statements. It also does not mention that bystanders, worried about Floyd, urged the officers to get off of him.

Chauvin and the other two officers nevertheless “stayed in their positions,” although Lane twice suggested that they roll Floyd off his stomach and onto his side. “I am worried about excited delirium or whatever,” Lane said at one point. Chauvin rejected Lane’s suggestions.

About five minutes after the officers pinned Floyd to the ground, he stopped moving. A minute later, “the video appears to show Mr. Floyd ceasing to breathe or speak.” Kueng checked Floyd’s right wrist for a pulse and said, “I couldn’t find one.” Still, “none of the officers moved from their positions.” About two minutes later, Chauvin finally removed his knee from Floyd’s neck. An ambulance arrived and took Floyd to the Hennepin County Medical Center, where he was pronounced dead.

The third-degree murder charge against Chauvin, which is punishable by up to 25 years in prison, alleges that he caused Floyd’s death by “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life,” but “without intent to effect the death of any person.” The lesser charge of second-degree manslaughter, which is punishable by up to 10 years in prison, alleges that Chauvin killed Floyd through “culpable negligence” that created “an unreasonable risk” of “death or great bodily harm.”

Both of those charges seem well-supported by the facts revealed in the video. What about first-degree murder, the charge that Benjamin Crump, the attorney representing Floyd’s family, thinks should have been brought? That charge, which carries a mandatory life sentence, requires that Chauvin acted “with premeditation” and “with intent” to kill Floyd. “We now have the audio from the police body cam, and we hear where one officer says, ‘He doesn’t have a pulse, maybe we should turn him on his side,'” Crump said today on Face the Nation. “But yet, Officer Chauvin says, ‘No, we’re going to keep him in this position.’ That’s intent.”

That claim seems plausible given the repeated pleas from Floyd, the repeated exhortations by witnesses, and Lane’s repeated suggestions that Floyd should not be left on his stomach—any of which, if heeded, could have prevented Floyd’s death. But do Chauvin’s actions suggest “premeditation”? That element does not require a carefully laid plan to kill someone, but it does mean that the defendant “consider[ed], plan[ned] or prepare[d] for, or determine[d] to commit, the act…prior to its commission.”

Second-degree murder, which is punishable by up to 40 years in prison, seems like a better fit. That charge requires that the defendant “cause[d] the death of a human being with intent to effect the death of that person or another, but without premeditation.” Yet even that charge requires an intent that Chauvin surely will deny.

Prosecutors may yet revise the charges against Chauvin. They may also file charges against Kueng and/or Lane, who were complicit in keeping Floyd pinned to the ground on his stomach despite all the warning signs. All four Minneapolis officers who were involved in the incident were fired the day after Floyd’s death.

“The defendant had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total,” the criminal complaint notes. “Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive. Police are trained that this type of restraint with a
subject in a prone position is inherently dangerous.”

Some of the details in the complaint could be useful to the officers’ lawyers. The complaint claims that Floyd was uncooperative and that he began complaining about difficulty breathing even before he was pinned to the ground, which might have led the officers to discount his subsequent complaints. “You are talking fine,” one of them said while Floyd was still moving.

The report also notes—gratuitously, in Honig’s view—that Floyd was “over six feet tall and weigh[ed] more than 200 pounds.” While that information might be relevant in understanding why the officers had trouble getting Floyd into the patrol car, it has no real bearing on what they did once they had him pinned. In particular, it does not explain Chauvin’s decision to keep kneeling on Floyd’s neck.

Honig also faults the prosecutors’ description of what caused Floyd’s death, which is based on preliminary autopsy results. “The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation,” the complaint says. “Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death.”

Honig notes that “the lack of ‘physical findings’ by no means rules out the possibility that the victim died of traumatic asphyxia or strangulation.” And he questions the reference to intoxication as a factor that may have contributed to Floyd’s death. “In my 14 years as a prosecutor (or my 45 years of life), I’ve never heard of a ‘potential intoxicant,'” he writes. “Did Floyd have intoxicants in his system or not? A basic toxicology test should answer that question conclusively, and there is no excuse for prosecutors to not know the answer, or to state it ambiguously, four days after Floyd’s death.”

Contrary to Honig’s assertion, toxicology results often are not available for weeks after an autopsy. At this point, the speculation that Floyd was under the influence of a drug seems to be based on little more than the officers’ suspicions. In any event, as Honig points out, that question is irrelevant to Chauvin’s culpability. Regardless of Floyd’s preexisting medical conditions or any drug he may or may not have taken, the relevant question is whether he would still be alive but for Chauvin’s actions, and the answer to that seems clear.

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