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The Trouble with Tasers

photograph of stun gun held up by hand

Recently a Sheriff’s Deputy in Florida was charged with culpable negligence for tasing a fleeing suspect soaked in gasoline and so causing a fire that resulted in second and third degree burns over seventy-five percent of the man’s body. Should the Deputy be criminally liable in such unusual circumstances? Hard cases make bad law, the saying goes. That is, good law is based on common, ordinary occurrences, rather than on rare and extraordinary ones. But the case does raise issues about something quite common but, unfortunately, less and less discussed: the wide-spread use of Tasers by law enforcement in America. Civilian, non-federal police alone are involved in approximately 421,000 use-of-force incidents a year (cases where they resort to some sort of physical force) and deploy a Taser in 36% of these – making for over 150, 000 tasings a year. How concerned with Tasers should we be?

U.S. law enforcement agencies own nearly a million Tasers. “Taser” is a brand name, but it is often used generically to characterize many different energy-directed weapons that deliver painful and debilitating shocks to their victims. Originally marketed as “non-lethal,” Tasers are now supposed to be a “less lethal” alternative to the use of a firearm – although they can kill. Reporting practices make it difficult to say exactly how many people have died from being tased, but estimates suggest as many as a thousand people have been killed between 2000-2018 in the United States. Furthermore, since 2001 at least ten people have been shot by police officers who later said that they were attempting to draw their Taser, but mistakenly drew their service revolver and fired.

Still, might Tasers be a less lethal alternative to firearms? Actually, they don’t seem to be an alternative to firearms at all. The only comprehensive study of the question reviewed 36,112 use-of-force incidents by the Chicago police and found no evidence that carrying and deploying Tasers reduced the use of firearms or that a Taser played the role of substituting for the use of a firearm. In fact, the study’s principal investigator, Professor Jeffrey Grogger, said unequivocally, “We find no substitutions between Tasers and firearms.” Hence, despite widespread acceptance of the practice of police carrying Tasers, and using them as weapons of compliance, the reality is that tasing is often not a substitute for a firearm, but a form of intentional, or unintentional, torture.

“Torture” is standardly defined as “the action or practice of inflicting severe pain or suffering on someone as a punishment or in order to force them to do or say something.” When Tasers are used by the police in the United States to assure immediate, unhesitating compliance with police orders, they are torture devices. Lower voltages are even referred to by police themselves as “pain-compliance” settings. At higher voltages, tasing renders the victim completely physically incapacitated via neuromuscular spasms. But higher voltages are also, of course, quite painful.

So, tasing inflicts severe pain and suffering on people in order to force them to do or say what the police want them to do or say without hesitation or negotiation. Given that the Bill of Rights in general, and the Eighth Amendment in particular, with its ban on “cruel and unusual punishments,” are generally taken to prohibit torture by the United States’ government and its representatives, why is torture via Taser so widely ignored?

Police would argue that this is a mischaracterization of the purpose and use of Tasers. Typical policy statements by police (follow Axon Enterprises’, the company that still manufacturers the original Taser, model statement) reserve the use of Tasers to cases where the suspect is “violent or physically resisting” or “has demonstrated an intention to be violent or to physically resist and who reasonably appears to present the potential to harm officers, him/herself or others.” But then adds: or where the police have “a reasonable belief that an individual has committed or threatened to commit a serious offense.” In other words, the criteria start with violence but end up incredibly broad. Who doesn’t have the “potential to harm” or to commit an offense in the future?

Despite these issues, some experts, including, for example, the Stanford Criminal Justice Center, still advocate for the use of Tasers – if they are used in the right way. They say, for example, Tasers should not be used on children, pregnant women, the elderly, the mentally ill, and those under the influence of drugs. As they admit, however, it’s not always easy to tell if someone is pregnant, mentally ill, on drugs, or even that they are a child. Still, they argue, “The purpose of Tasers and other weapons is to subdue violent and dangerous individuals…and [should] never [used] on individuals who are passively resisting arrest.” Perhaps, then, it is the misuse, rather than the use, of Tasers we should be worried about.

If we are not going to eliminate, or very strictly limit, police use of Tasers, how do we ensure that Tasers are used in the right way by law enforcement? What should our goal be?

Maybe, we should end on the one unequivocally good thing about Tasers. They have, in fact, reduced the number of police injured in use-of-force events. “But,” as Professor Grogan puts it, it might “be better if the distribution of injury reduction was better split between [police] and suspects.”

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Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?
Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.
Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.
Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.
The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.
Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.
It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.
The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.
Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

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Do Police Intentions Matter?

photograph of armed police officer

Imagine if it became widely-reported that police officers had been intentionally killing Black Americans for the expressed reason that they are Black. Public outrage would be essentially universal. But, while it is true that Black Americans are disproportionately the victims of police use of force, including lethal force, it seems unlikely that these rights violations are part of a conscious, intentional scheme on the part of those in power to oppress or terrorize Black citizens. At any rate, the official statements from law enforcement regarding these incidents invariably deny discriminatory motivations on the part of officers. Why, then, are we seeing calls to defund the police?

The slogan “Defund the Police” has been clarified by Black Lives Matter co-founder Alicia Garza on NBC’s Meet the Press: “When we talk about defunding the police, what we’re saying is, ‘Invest in the resources that our communities need.’” The underlying problem runs deep: it is rooted in an unrelenting devaluation of communities of color. Rights violations by police are part of a larger picture of racial inequality that includes economic, health, and educational disadvantages.

The sources of this inequality are mostly implicit and institutional: a product of the unconscious biases of individuals, including police officers, and prejudicial treatment “baked into” our institutions, like the justice system. That is, social inequality seems to be systemic and not an intentional program of overtly racist policies. In particular, most of us feel strongly that the all-to-frequent killing of unarmed Black citizens, though repellent, has been unintentional.

But does this distinction matter? A plausible argument could be made that the chronic, unintentional killing of unarmed Black men and women by police is morally on a par with the intentional killing of these citizens. Let me explain.

Let’s begin with the reasonable assumption that implicit racial bias, specifically an implicit devaluation of Black lives, impacts decisions made by all members of our society, including police officers. What is devaluation? Attitudes toward enemy lives in war throws some light on the concept: each side invariably comes to view enemy lives as less valuable than their own. Even unintended enemy civilian casualties, euphemistically termed “collateral damage,” become tolerable if the military objective is important enough. On the battlefield, tactical decisions must conform to a “tolerable” relation between the value of an objective and the anticipated extent of collateral damage. This relation is called “proportionality.”

By contrast, policing is intended to be a preventative exercise of authority in the interest of keeping the peace and protecting the rights of citizens, including suspected criminals. Still, police do violate rights on occasion, and police officials operate with their own concept of proportionality: use of force must be proportional to the threat or resistance the officer anticipates.

Ironically, rights violations usually occur in the name of the protection of rights; when, for example, an officer uses excessive force to subdue a thief. Often, these violations are regarded as regrettable, but unavoidable; they are justified as the price we pay for law and order. But, in reality, these violations frequently stem from implicit racial biases. What’s more, the policy of “qualified immunity” offers legal protections for police officers and this disproportionately deprives Black victims of justice in such cases. This combination of factors has led some to argue that police authority amounts to a form of State-sponsored violence. These rights violations resemble wartime collateral damage: they are unintended consequences deemed proportional to legitimate efforts to protect citizen’s rights.

Now consider the following question posed by philosopher Igor Primoratz regarding wartime collateral damage: is the foreseeable killing of civilians as a side-effect of a military operation any morally better than the intentional killing of civilians. Specifically he asks, “suppose you were bound to be killed, but could choose between being killed with intent and being killed without intent, but as a side-effect of the killer’s pursuit of his end. Would you have any reason for preferring the latter fate to the former?”

Imagine two police officers, each of whom has killed a Black suspect under identical circumstances. When asked whether the suspect’s race was relevant to the use of force, the first officer says, “No, and I regret that deadly force was proportional to the threat I encountered.” The second officer says, “Yes, race was a factor. Cultural stereotypes predispose me to view Black men as likely threats, and institutional practices in the justice system keep the stakes for the use of lethal force relatively low. Thus, I regret my use of deadly force that I considered proportional to my perception of the threat in the absence of serious legal consequences.”

The second officer’s response would be surprising, but honest. Depictions of Black men in particular as violent “superpredators” in the media, in movies, and by politicians, are ample. Furthermore, the doctrine of qualified immunity, which bars people from recovering damages when police violate their rights, offers protection to officers whose actions implicitly manifest bias.

In the absence of damning outside testimony, the first officer will be held blameless. The second officer will be said to have acted on conscious biases and his honesty puts him at risk of discipline or discharge. Although the disciplinary actions each officer faces will differ, the same result was obtained, under identical circumstances. The only difference is that the second officer made the implicit explicit, and the first officer simply denied that his own implicit bias was a factor in his decision.

Where, then, does the moral difference lie between, on one hand, the foreseeable violation of the rights of Black lives in a society that systemically devalues those lives, and, on the other hand, the intentional violation of the rights of Black lives? If the well-documented effect of racial bias in law enforcement leads us to foresee the same pattern of disproportionate rights-violations in the future, and we do nothing about it, our acceptance of those violations is no more morally justified than the acceptance of intentional right-violations.

That is, if we can’t say why the intentional violations of Black rights is morally worse than giving police a monopoly on sanctioned violence under social conditions that harbor implicit racial biases, then sanctioning police violence looks morally unjustifiable in principle. That is enough to validate the call to divert funding from police departments into better economic, health, and educational resources for communities of color.

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Under Discussion: Law and Order as Suppression and Oppression

photograph of police in riot gear in Portland

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Law and Order.

In the last four months, there have been protests every day in support of the Black Lives Matter movement. Despite an estimated 93% of these protests being peaceful, there have been continual calls for “law and order.” Trump tweeted as much and emphasized the need for it during his speech in response to recent protests in Kenosha, and now both he and presidential candidate Joe Biden have campaign ads promoting law and order.

When leaders focus on public safety during nationwide protests, this shifts the attention from the cause, motivation, and aim of the protests. For instance, consider a case in Kenosha, WI. Protests began after police shot Jacob Blake seven times in the back. Blake was an unarmed Black man returning to his family in his car. 17-year-old Kyle Rittenhouse travelled to Kenosha, allegedly to protect local businesses from the protesters and ended up killing two men.

But the Kenosha Sheriff, who was called to apologize for a racist rant in 2018, emphasized that the shootings would not have happened if Kenosha’s 7pm curfew had been respected. His words shifted attention from the shooter to the policies in place to ensure public safety. This spreads the blame for the murder of the protestors to include the victims as well as Rittenhouse, who had arrived from out of state with an AR-15-style rifle. (The ACLU is calling for the sheriff to be fired.)

When “law and order” is the story, the fact that “law” has never been meted out in any sort of even-handed fashion isn’t the story. When there have been months of Black Lives Matter protests, and the response is to call for “law and order,” this should give pause. The structure of law is saturated with practices that guarantee that its protections and penalties will not ensure the safety or dignity of Black members of our country. At every stage of its production and execution, “law and order” is something worth working to change.

Representatives making the law in Congress are disproportionately white. (Though the 116th congress is the most racially and ethnically diverse congress ever, it is only 22% non-white; 39.9% of people in the US are non-white according to the last census.) Further, voting for the representatives who make the law is easier, and designed to be easier, for white people. (After a 2013 Supreme Court decision struck down the Voting Rights Act, over half of the states have added policies that make it more difficult to vote, disproportionately affecting non-white voters. In the end, the system of law-making is bent towards white interests and white voices. And the justice system reflects this as well, both in the first contact it can make with individuals (the police), and the disparate consequences of this contact. Over-policing leads to the disproportionate arrests of Black and Latinx people living in the US. The use of forensic evidence that isn’t scientifically valid and biased for the prosecution, added to the practice of peremptory exemptions stack the deck against defendants in trials. When previously incarcerated people can’t vote, and incarcerated people are disproportionately Black due to these and other systemic problems, there are deep issues with the structure order of law.

But this summer, what are the protests around the country protesting? Not necessarily these legal institutions directly. Rather, the pattern of violence and brutality aimed at Black men and women by the police that has gone unchecked, that has only grown more and more blatantly obvious. The policies and practices of the police force have meant that the patterns of violence have continued. Ahmaud Arbery, George Floyd, Breonna Taylor, Elijah McClain, Jacob Blake, Daniel Prude, Mychael Johnson, Tony McDade and Wilbon Woodard are just some of the Black people murdered by police officers in 2020.

Appealing to “order” in the face of institutionalized oppression and a lack of indication that law or order will address the violence and lack of accountability is disingenuous, negligent, or hateful. The “order” that the leaders call for characterizes the protests as problematically “disorderly” instead of focusing on the cause for the protests disrupting the order. When paired with the value of “law,” these appeals ignore the failure of the legal system to serve rather than suppress members of our community.

This context might be different if the calls to law and order were redirected to law enforcement. The human rights violations during the protests brought the racism in the United states to the attention of the UN Human Rights Convention. Laws protecting the rights of journalists and medics were blatantly ignored, as police targeted them with the same tear gas and rubber bullets they assaulted other peaceful protesters with. Just in the time between May 26th and June 5th, Amnesty International documented 125 examples of police violence against protesters. The organization also found that the protesters’ human rights were repeatedly violated and documented acts of excessive force by police and law enforcement.

Ultimately, calls for “law and order” fail to acknowledge the grave injustices that got us here in the first place: the enforcers of law and order acting as tools of racism and violence. The response to the protests only highlights the need for the protests in the first place.

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The “Wall of Moms” and Manipulating Implicit Bias

photograph of "Wall of Moms" protesting in Portland

Since Officer Chauvin murdered George Floyd, cities across the US and the world have protested the ongoing murder of Black men and women in public and without consequence by the police, and even by neighbors. Protesters have been met with more violence and escalation, by responding police officers, followed by national reserve units, and most recently the deployment of unmarked federal agents to multiple cities.

In the media, the characterization of these protests has been shifting since their onset. Reports of rioting, property damage, and looting contrasted with messages of the priority of the significance of human lives taken by white supremacist violence and the damage to the Black community over time. While some news stories highlighted the rowdiness of protests after dark, in response to police driving vehicles into crowds, tear-gassing groups, and shooting rubber bullets, others focused on the peaceful gatherings with speeches, songs, and non-escalating marches.

On social media, advice regarding how to stay safe in the midst of these large gatherings during COVID and in the face of military escalation proliferated. From wearing masks, to how to contact a lawyer, to what to do if teargassed, messages about how to stand up for Black Lives Matter were readily available. A common thread among these topics of advice was what to do if you are white and out supporting BLM.

The advice for white protesters frequently included the importance of reminding oneself that the protests center on experiences that are not endemic to the white population, but rather the non-white. This means that while numbers speak to support and are important, it is in the supportive rather than directive role that white protesters may be most strong. Further, as a member of the protest that is less susceptible to violence and physical threat, individuals can help others that are more at risk. Videos began to show white protesters putting their bodies between Black speakers, demonstrators, or groups of protesters and police officers in riot gear.

The white ally had a clear space in the media: protector of protesters.

On July 21st, a group of white women joined arms and formed a wall between police in riot gear and protesters in Portland on a late Tuesday night. Calling themselves a “Wall of Moms,” they shouted at the most recent show of militarized force by the police using phrases such as, “You wouldn’t shoot your mother!” They were teargassed and absolutely shocked at such treatment by “their” police.

The white individuals between militarized police and Black protesters, including the Wall of Moms, are using the biases of the police in order to lessen the likelihood that violence will break out, counting on their disinclination to harm white bodies compared to Black bodies. The effectiveness of this strategy relies on the notion that the police behave differently when faced with white members of society than non-white members, and this has been shown over and over again, both in protests and in the data on police brutality.

When faced with armed and yelling white people outside state capitals fighting public health policies, police are quite capable of de-escalation. However, people marching, unarmed, to bring awareness to, and protesting, such pernicious racial injustice that have led to systemic murder prompts such escalation as to draw extreme concern from the UN Human Rights Council. In fact, in many cases BLM protesters had to de-escalate police, rather than the other way around.

The Wall of Moms incorporates a variety of police and societal biases, which they explicitly invoked in their explanations of their strategies. As with all cases of the sort of white support mentioned above, using the privilege of one’s skin to attempt to change police’s behavior is manipulating the perceived biases of the police. The Wall of Moms evokes race, class, and gender in order to be effective.

The middle class white women who conform to the role of “mother” are attempting to draw a contrast between themselves and the protesters behind them. Many used rhetoric involving “protecting the children,” labeling the protesters in Portland as youths in need of mothering. Further, the call to “bring out the moms” itself reflects racial bias, including a de-feminization of Black women and reduction of Black individuals who inhabit the same roles as white people. It  neglects the fact that many Black mothers have played active roles in past BLM movements and been a part of the 2020 protests from the beginning.

The Wall of Moms went a step further than the other white bodies placed between protesters doing the protesting and the violent police. They created their own message, and, in the end, their own 501c3. They co-opted the idea that moms were a new and necessary part of the protests. They reinforced gender norms and the role of “Mother.” A “Wall of Dads” joined them armed with leaf blowers. The sense of white middle-class “normalcy” to play with the police’s preconceptions of people not to harm went beyond working with the underlying biases that make up the potential issues with de-escalation and underscored the roles of race and gender as real divides in our society.

In the case of the Wall of Moms, the privileges that put them in the position to potentially de-escalate the police’s racist violence also manifests the privileges regarding media coverage. The way that the Wall of Moms embraces the traditional picture of what it means to be a “normal” woman in our society plays on gendered biases involved in the hierarchies of privilege, and this in part is what leads to the ease with which they can take over the narrative of the protests in the media. White women occupy roles that call out for the need to be protected, and yet they were harmed here. This narrative takes over the story and eclipses the 125 cases of police violence against protesters before the Wall of Moms ever appeared on the scene.

The next day and into the week, media coverage of their courage, and outrage at their treatment, took over. In a piece by The Washington Post, the courage of the Wall of Moms was lauded in heroic terms:

“In front of the federal courthouse, federal agents in tactical gear used batons to push back the moms in bike helmets. Dozens were tear-gassed. Some were hit with less-lethal bullets fired into the crowd.

Still, they stayed.”

CNN reported the reaction of one participant, in disbelief that the Wall of Moms received the treatment that had been reported for weeks, this time framed in a decidedly positive light:

“The Feds came out of the building, they walked slowly, assembled themselves and started shooting [teargas] I couldn’t believe it was happening. Traumatic doesn’t even begin to describe it… Getting shot and gassed and vomiting all over myself and not being able to see, something clicked in my brain and I was like how could we collectively as mothers let our kids do this? I got home and showered and I told my husband we were going out the next night.”

A “Today” article reporting on events opened with, “The group, which includes hundreds of mothers, has said the protests are peaceful, but the police have been violent.” Such reports highlight the testimony of a group of white women after weeks of similar reporting by Black protesters that had not been compelling enough to quell dismissal or criticism of the protests.

The move from supportive role to main-story is not a novel one for white allies, especially for white women.

If we understand these behaviors in terms of implicit biases, they are relatively difficult to fit into our theoretical frameworks of moral evaluation. The biases include:

  • The police’s racist biases,
  • the “white ally” or savior’s explicit manipulation of the racist biases,
  • the Wall of Moms bringing in the implicit biases of motherhood and traditional gender roles that intersect with the racist stereotypes that don’t fit these roles, and
  • the media/audience biases that allow the story to be one not of the strategic manipulation of biases but rather reifying the roles the Wall of Moms invoke

These implicit biases pose issues for moral responsibility. When individuals endorse their behaviors and the attitudes that result in their behaviors, it is easier to hold them fully accountable for their behaviors and attitudes.

In the case where I think “Rich people are smart” and agree with the view that our society is set up in the structure of a meritocracy, it may be a simple matter to hold me responsible for the behavior that results from this perspective. The associations in our society that cast the behaviors of wealthier people in a more positive light may very well be influencing my belief, but my explicit endorsement plays a role in how we assess my behavior. If, for instance, I negatively judge and avoid individuals that have features I associate with less affluent groups, the fact that I have a belief system I stand behind that informs this behavior suggests that I am knowingly complicit. The harm I may cause to individuals is attributable to me and my beliefs, and therefore morally evaluating my behavior is relatively straightforward.

In contrast, say that while I have internalized the notion that we live in a meritocracy, and therefore rich people have in some way deserved their place in our economic and social system, I don’t actively or consciously endorse the idea that they are, in fact, smarter than those in other economic strata. These notions may come out in my behaviors – judging and avoiding personality characteristics or features associated with the less affluent, voting for policies that punish the poor or support the rich, etc. In this case, I may cause harm, but due to beliefs and attitudes that I do not explicitly endorse. They are attributable to me in a less clear or direct way: they are part of my motivational set, but wouldn’t show up in my explicit deliberation, narrative, or defenses for my behavior. This makes the behavior (and harm) resulting from the implicit biases more difficult to evaluate, and more difficult to alter in the long run.

In ethics, harm-based views have an easier time dealing with the distinction between implicit and explicit attitudes, because the important part of our behavior is the result: if you cause harm, that is the focus, and what we should hold you accountable for. Views that focus on intent, or the quality of the will behind the actions, have a more difficult time distinguishing what moral evaluation we should assign behaviors that result from implicit attitudes.

In the case of the police’s racist biases, this leads to systemic murder and brutalization of non-white, especially Black members of our communities. It leads to dramatic differences in responses to groups of people protesting, and a culture of terror inflicted in non-white spaces.

For the “white ally” these biases can be manipulated to produce positive results — avoiding harm and supporting movements by making space for messages and impact to continue forward without the force of the police’s biases to run free. However, the performance can also erode these effects and do harm by perpetuating the “white savior” narrative.

The Wall of Moms echoes this duality. While they might play a supportive role – making space for safe and impactful movements – they might also reinforce the stereotypes and biases they are attempting to play on.

The media, unfortunately, is a reflection and amplification of the societal biases and stereotypes that make it less likely for white people to be subject to violence and extreme violence. Protests for racial justice are more likely to be subject to suspicion and violence than protests in support of white interests. The media picks up on the interests of its average viewer – as the Wall of Moms members put it, “normal,” in both age, class, skin tone, and gender.

A harm-based view can account for both these drawbacks and advantages of the behaviors of white participants in the BLM protests. It can recognize that these behaviors are the topic of so many discussions and come up in such problematic ways. It can direct us in how to refocus and what to refocus on.

When the interaction of so many implicit biases is necessary to make sense of these tactics, evaluating the behavior morally at individual levels defies our models of moral evaluation. The individuals and groups involved in these behaviors would likely deny or fail to endorse the underlying attitudes and bases for their behaviors. The police would deny their behaviors are rooted in a contrasting value of white and non-white lives, and the Wall of Moms likely would deny their reification of the interaction between race and gender roles, and fail to acknowledge their role in taking over the message with their privilege.

In important ways, the biases of both the police and the white allies are reflecting the biases of societal privilege back to each other and to the society. The behavior of the Wall of Moms and the other white actors discussed here wouldn’t make sense as tactics without the racism inherent in our society – either implicitly or explicitly present in police officers or systems of policing put in place by our communities. This makes bias and the systems of privilege that cultivate it the responsibility of the community, and especially those with the privilege, to dismantle.

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Censoring “Gratuitous” Violence

black-and-white photograph of protestor taking photo of "White Silence is Violence" sign with phone

The video of George Floyd dying after nine long minutes by suffocation at the hands of a Minneapolis police officer is gruesome, sickening, and has prompted countless people to action. The officers responsible for his death have been arrested and charged. In response to protests, numerous state and local governments are instituting police reforms. Black people have been killed by police before. But given that this particular video of unambiguous violence perpetrated by police has been circulated so widely, is so appalling, and instigated such a fierce response, this example stands out.

From this fact, a rough argument may be sketched. Sharing videos of horrifying violence prompts positive social change, so let’s share more videos of horrifying violence. If such a video is helping to stop police violence, why not share other violent videos to help stop gang violence, war violence, and terrorist violence? In fact, why not share videos showing the effects of structural violence, videos of suicides due to social isolation and industrial accidents due to lack of regulation? Scrolling through Twitter or Facebook, one might see a video of a cute baby taking her first steps, then a video of a terrorist execution, then a video of a bunch of newborn puppies, and a video of a young man sticking a gun in his mouth and pulling the trigger. Even if you think it is good that the Floyd video was widely shared, you probably don’t support turning your morning scroll through social media into such a traumatic experience. To understand this apparent contradiction in instinct, let us consider how violent content is treated on social media today and the arguments for and against censoring it on these platforms and in general.

First, we need to consider what “violent content” is and how it is understood by social media companies. While there may be an intuitive sense that violent content only includes uses of force for the purpose of causing harm, social media companies take a more expansive view. Twitter, for example, includes under the category of “graphic violence,” accidents and any “serious physical harm.” But, these companies also tend to distinguish between what Twitter calls “graphic violence” and “gratuitous gore,” as though there is some amount of violence or gore that is not in some way “gratuitous” to our experience of the world.

While graphic violence may include “bodily fluids including blood, feces, semen,” and is only hidden behind a “sensitive media” label and blur, “gratuitous” gore, which includes dismemberment, mutilation, burned human remains, and exposed internal organs and bones, is banned completely. But what exactly is the meaningful difference between these two categories? For example, a decapitation would certainly count as gratuitous gore and would be extremely off-putting. But, the video of Floyd being killed is merely graphic violence, even though it can easily be just as off-putting, if not more so. In fact, while a decapitation may be quick and relatively painless, Floyd died slowly of suffocation. Why is one “gratuitous” and not the other? Why is one censored and not the other?

From the start, companies can have two kinds of motivations for doing anything: moral ones and amoral ones. Either they do something because it is right or thoughts of right and wrong simply don’t factor into their decision. Twitter presents a moral argument for their censorship. They say that “We prohibit gratuitous gore content because research has shown that repeated exposure to violent content online may negatively impact an individual’s wellbeing.” Twitter does not make clear what they mean by well-being but if they mean an immediate sensation of feeling good or ill, their argument is trivially true. Only a sadist really enjoys the suffering of others and has their immediate well-being improved by viewing it.

And there might be a legitimate basis for Twitter’s claim. There is some evidence that regular viewing of violence can be desensitizing, though “regular viewing” here means in excess of two hours every day and none of the science is settled. But, there is also an obvious profit motive for Twitter’s censorship—if you associate negative feelings with your use of Twitter, you are unlikely to use it as frequently, and fewer users means less ad revenue. Regardless of the morality of this censorship, Twitter is motivated to censor for the sake of profits. So then, what are the moral reasons that could support this sort of censorship?

To answer this question, let’s first consider the odd bunch of people who do seek out violent content, taboo gratuitous gore in particular, to watch. One particularly popular community of these people was the Reddit group r/watchpeople die, which had over 400,000 members before it was banned. At that size, it is difficult to chalk the membership of that group up to just sadists, sociopaths, and other such extraordinarily deviant people. In fact, the moderators and power users of this subreddit were pretty much normal people, some married, plenty having friends. They didn’t fit the stereotype of obsessive death and gore watchers.

In fact, Rule #3 of the subreddit (as shown in this Wayback Machine archive of the subreddit’s homepage on September 20, 2018, shortly before its quarantine) included this expectation, bolded by the mods to highlight it: “Be respectful of the dead! This is important. Human beings have lost their lives. This subject matter is not to be taken lightly.” The subreddit also described itself as “a community for documenting and observing the disturbing reality of death” and as “not intended to be a shock or gore subreddit.” Finally, they referenced two famous philosophical ideas: “Memento mori,” the Latin Stoic maxim to always remember one’s inevitable death, and “Maranasati,” a similar idea in Buddhism. Gratuitous gore is often referred to online as “gore porn” as the basis for viewing it is thought to come from a similar place as the animalistic urge to view other kinds of pornography. However, in light of the seemingly principled basis for this community, it is tough to say that all viewing of gratuitous gore is pornographic.

Sue Tait, a lecturer in the field of mass communications at the University of Canterbury, elaborates on this idea in her article, “Pornographies of Violence? Internet Spectatorship on Body Horror.” She considers four different ways people in these sorts of communities interact with gratuitous gore. She refers to these as four kinds of gazes viewers have:

“I identify a range of spectatorship positions [viewers] take up, including: an amoral gaze, whereby the suffering subject becomes a source of stimulation and pleasure; a vulnerable gaze, where viewers experience harm from graphic imagery; an entitled gaze, where viewers frame their looking through anti-censorship discourses; and a responsive gaze, whereby looking is a precedent to action.”

To contextualize these gazes, let’s consider some examples from before. The amoral gaze would be the one taken up by the sadists. The vulnerable gaze is the one Twitter worries about its viewers having-they worry people will associate the “hurt” they feel at viewing gratuitous gore with the site itself and stop using it. The r/watchpeopledie community’s focus on “documenting and observing the disturbing reality of death” would be an example of the entitled gaze. And last but not least, the responsive gaze would be the one taken up by those who were prompted to action by the video of Floyd’s death and any one who would be prompted to similar action by similar, but gorier, content, like many on r/watchpeopledie were.

With the idea of these different kinds of gazes in mind, we can now construct a variety of arguments for and against the censorship of violent content.

According to virtue ethics, we might support censorship of gratuitous gore if it seems that regular exposure to gratuitous gore encourages vices in viewers. For example, if conclusive research comes out showing that exposure to violent media causes people to be more aggressive, cruel, or unempathetic, that would be a reason to support censoring gratuitous gore, the most extreme form of violent media. (In particular, we might worry about how this media influences the character of children whose morals are viewed as being particularly malleable.) This would be particularly true if a community encouraged people to take up an amoral gaze.

On the other hand, we might oppose the censorship of gratuitous gore if it seems that same exposure promotes virtue, rather than vice, in the viewers. If viewers take up a responsive gaze, rather than an amoral one, people may be encouraged to be more compassionate. As Stalin is reported to have said, “If only one man dies of hunger, that is a tragedy. If millions die, that’s only statistics.” Seeing the “disturbing reality of death,” over and over again, be it by hunger or by violence, might prevent people from losing touch with the horror of various kinds of violence and actually work to take action as they did with police violence after seeing the video of Floyd’s murder.

Immanuel Kant, the father of deontology — morals based on duties — made a creative argument against the abuse of animals that could be used to justify the censorship of gratuitous gore. While Kant did not believe animals had rights, or even any kind of consciousness, he still opposed sadistic animal abuse saying, “If any acts of animals are analogous to human acts and spring from the same principles, we have duties towards the animals because thus we cultivate the corresponding duties towards human beings.” In short, we shouldn’t abuse animals pointlessly lest we become able to do the same to people. In the same way, if repeated exposure to gratuitous gore hampers the cultivation of our duties toward people (as would be the case upon taking up the amoral gaze), such as not to murder them, then censorship of gratuitous gore would be justified.

But, deontology can also be used to oppose the censorship of gratuitous gore. Those who take up an entitled gaze might argue that we have a duty to uphold free speech or that we even have a duty to “document” deaths, for various purposes. People might also have a duty to bear witness to the reality of death for some further end as according to the maxim “Memento mori.”

Finally, we can give consequentialist arguments for and against censorship. If, on the whole, the viewing of gratuitous gore leads to more people doing harm to each other, then it should be censored. If not, if, according to the responsive gaze, people’s viewing leads to great social change, then it absolutely should not be censored.

This argument is especially powerful in an affluent nation like the United States. If you are an American, and if you are just a little lucky, you will have to see only a few people die, you will only attend a handful of funerals, and those funerals you do attend will recognize the deaths of people who we think were more or less supposed to die, that is, the elderly. But, Americans are an exception and though we can hide from death for most of our lives, the world is not a happy place where only those who have lived long lives, or who get unlucky with serious diseases like cancer, have to die. All sorts of horrible causes of death, from childbirth, infectious disease, war, and industrial accidents, are still very common in the Global South. You can find a particularly horrifying intersection of all of these in the Democratic Republic of the Congo where resource conflict has led to widespread poverty, civil war, and unsafe mining operations. But, some combination of these horrors can be found in most areas of the world.

We are terribly desensitized to all these horrors as these deaths are reduced to mere numbers. Few Americans have seen the effects of poverty, war, and sickness in these far away places. And, as they say “out of sight, out of mind.” If only a small portion of people take up the responsive gaze and stand up against these atrocities, and actually manage to remedy some of them, that would be an enormous consequentialist benefit that outweighs all the temporary harm it does to the “well-being” of comfortably, relatively wealthy (on the world scale), American viewers.

Overall, a violent video is not moral or immoral in isolation. Rather, the viewing of violent videos may be moral or immoral depending on the context. The morality of censoring gratuitous gore and other violent content may also depend on human nature. If most people, most of the time take on an amoral gaze or vulnerable gaze when viewing violent media, then by most accounts, censorship is justified. But, if people are basically good, then they might mostly take on the responsive gaze and untold benefits would result from ending the censorship of violent content. While it very well may be that some or all violent content deserves censorship, we ought to examine our reasons for censoring it. We ought to consider whether that censorship has a true moral basis or whether viewing violence is just uncomfortable, forcing us to reflect on the horrors of the world in a way from which we are usually, blissfully, isolated.

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Undoing White Privilege

photograph of BLM protester with sign explaining white privilege

By now we have all seen the video of African-American man George Floyd ‘s murder under the knee of a white police officer several weeks ago on an ordinary evening in a Minneapolis street that caused huge protests across the US and worldwide. Even in a culture that normalizes violence against Black bodies, this footage is particularly shocking.

Derek Chauvin has George Floyd pinned to the ground and is kneeling on his neck. Three other officers are standing, mostly off camera, hovering in mute complicity, unwilling or unable to stop what is slowly taking place before them.

The slowness is shocking. For eight excruciating minutes Chauvin kneels on George Floyd’s neck as he struggles. George Floyd calls out for his mother, begs for his life, fights for breath, gasps “I can’t breathe.” A stream of urine flows from under the car. Chauvin slowly and unflinchingly crushes the life from the man beneath his knee.

That Chauvin does not flinch is shocking. The violence is not reactive. Chauvin isn’t in a hurry, he isn’t in a frenzy, and his facial expression suggests he knows what he is about. As he slowly crushes George Floyd’s neck, he looks into the camera.

That Chauvin looks so long into the camera is shocking. The person holding the cell phone is very close to where Chauvin has Floyd’s face pressed into the road, and Chauvin looks defiantly into the camera with no hint of shame or self-consciousness. He does not care that he is being recorded. His expression seems to dare the onlooker to film him as other bystanders can be heard in the background shouting.

What can we read from the expression on Chauvin’s face? That image has been stilled and reproduced in countless media articles. It isn’t necessarily clarified in captions that this picture is taken at the moment he is murdering George Floyd – which is something that, looking at the picture, you can’t possibly tell. As he kneels on George Floyd’s neck for eight minutes Derek Chauvin looks banally into the camera. He has his hand in his pocket.

That Chauvin has his hand in his pocket is shocking. The body language of casual dismissal becomes a most vicious form of contempt – Chauvin’s face shows no rage. His expression and his gesture, as he kneels for eight minutes on George Floyd’s neck looking into the camera with his hand in his pocket, look like boredom.

Hannah Arendt coined the phrase “the banality of evil.” The phrase refers to the trial of Nazi war criminal Adolf Eichmann, and describes his part in, and muted response to, the bureaucratic systems that required him to process Jews for transportation to the death camps during WWII and enabled him to do so without troubling his conscience.

The phrase seems nevertheless apt, because of the expression and gesture of banality Chauvin personifies; his conscience is not troubled, and his expression betrays his expectation of impunity.

In a recent PBS News special, filmmaker and activist Ava DuVernay, for whom viewing videos of police violence is routinely part of her research, reflects upon what it is about this video in particular that was, as she said, ‘bringing her to her knees’: “… I could see that white officer’s face, I could see his disdain, I could see his intention (in my view), I could see the callous disregard for human life.”

The video of Floyd’s death sparked worldwide protests and support for Black Lives Matter because it was yet another instance, another instance too many for communities at breaking point, in the long litany of racist police brutality. But also because the film itself is so powerful – so close up, so intimate, and so emblematic of the system of white supremacy that routinely and indifferently crushes Black lives.

The video of Floyd’s death exposes a truth that it is impossible to look away from, a truth already known by many and which others are coming to, finally, for the first time: that white supremacy still reigns. And in this video, it looks directly at us all.

Darren Walker, President of the Ford Foundation, told PBS that: “White America was deeply wounded and shocked by the visual of [George Floyd’s] murder over eight and a half minutes; and for White America deniability of racism in our policing, and in our nation, is no longer an option.”

Whether you already knew, or whether you are coming for the first time to this knowledge, you are witness to the sickening legacy of colonialism, slavery, and racial segregation still playing out in a world which has not reckoned with the sins and the atrocities of its past.

We may be justified in our hope that the time has arrived for that reckoning, and that it will lead to real action on racial justice. But what will real action look like?

As many have been saying, reform is not enough. In the view of author and activist Roxanne Gay it is unlikely that reform could come from inside the system – the police force cannot reform itself because the institution is corrupt: “we’re going to have to really expand our imaginations to reimagine what law enforcement might look like if racism did not underpin it.”

As Gay implies the system in which racism is inbuilt and white privilege is invisible cannot be reformed. Real, meaningful change will require the dismantling of white supremacy and white privilege.

The Black community, in the US and elsewhere, has a long and proud history of activism in the fight against racism for civil rights and justice, but it should not be up to Black activists, protestors, and communities to do this work. Allies in the white community are crucial for Black Lives Matter in the US, Australia, and elsewhere; but for such allies, walking with and in support of the Black community is not enough. White people need to dismantle the system of white supremacy and privilege, and find a way to decolonize our thinking and our institutions.

White support for Black resistance to racial injustice is often transient – because it can be, because white supporters can choose to be active or not on race issues, and the luxury of that choice is one expression of privilege. White support can also, in the experience of generations of Black activists, manifest as a burden. This is something white allies need to be aware of. When well-intentioned would-be allies go to Black communities and ask, “what can I do?” they are inadvertently placing the burden on Black communities to educate them. This has been a persistent problem for Black activists.

Ava DuVernay said to PBS, of people asking what to do, “my answer is educate yourself – there have been white allies throughout the history of America who have gotten together and come up with muscular strategies for change…’what do I do?’ is really asking for Black labor in this moment to help you think through what to do: trust me, there is something to do where you are.”

Being or becoming an ally in the struggle for racial justice is not about just walking into this space and asking “what can I do?” because this shifts the onus back onto the Black community. DuVernay says: “I invite Caucasian people to devise tactics and strategies – things only white people can do… strategies to dismantle these things [manifestations of institutional racism] actively.” That, she says, “would be a game-changer.”

It is incumbent on white people to know history, to understand the nature of racism and to find ways, big and small, to dismantle the system of white supremacy. We must educate ourselves, and we must undertake the work of learning to identify privilege and learning ways to refuse, counter, deflect, and subvert it.

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Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?

Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.

Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.

Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.

The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.

Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.

It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.

The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.

Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

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“Defund the Police”: A Powerful if Ambiguous Slogan

black-and-white photgraph of protestors holding "Defund the Police" sign

During the recent protests in wake of the murder of George Floyd, many have begun calling for state and local governments to “defund the police.” However, as Matthew Yglesias at Vox aptly puts it, “A three-word slogan is not a detailed policy agenda, and not everyone using the slogan agrees on the details.” So what are these protestors calling for with this slogan? And, what are the ethical ramifications of these different proposals?

The most radical proposal represented by this slogan is in line with the traditional meaning of “defunding.” Yglesias defines “defunding” a part of the government as “reduc[ing] appropriations to zero dollars, thus eliminating it.” Under this proposal, the police would be completely abolished as an institution. While radical, this proposal is not completely without support:  In Minneapolis, where Floyd was murdered, the mayor was booed and met with chants of “shame” when he refused to commit to abolishing the police department. Police have not always been around. As activist Mariame Kaba explains in The New York Times, police in the United States arose to enforce slavery and combat labor activists. We lived without them once and could do so again.

Others using this slogan don’t literally want to wholly eliminate the police. Rather, they want the scope of police action greatly minimized. Rather than have police respond to reports of mental illness or suicide attempts, we could send “community care workers,” as Kaba suggests. Rather than have police be called for every noise complaint or traffic violation, these issues could be dealt with communally. In fact, in Dallas, something like this is already happening. Heightened police contact with the public increases the odds that people will be subject to police violence. So, they say, where we don’t need police contact, why have it? On the whole, this group cries “defund the police” mostly to shift public discourse.

This group does not just want to minimize the role of police, however. They also advocate for reallocating funding to social programs. A major proponent of the abolition of the police today is professor of sociology at Brooklyn College, Alex Vitale. As he explains in an interview with Mother Jones, many crimes can be prevented by tackling social issues head-on rather than punishing people who violate the laws.

But, you may be wondering, why should we think this? In recent history, the Clinton administration passed the Violent Crime Control and Law Enforcement Act of 1994, which “put 88,000 additional police on the streets and mandated life sentences for criminals convicted of a felony after two or more prior convictions, including drug crimes,” for seemingly good reason. Violent crime increased immensely in the late 80s and early 90s before falling drastically around the time of these reforms. Increasing law enforcement stops crime. Case closed, right? Not quite. While this is a simple and satisfying story, the causes and effects of the rise and fall of violent crime during this period are still being studied so it is difficult to make any definitive claims.

Let us, then, consider an alternate account of the relationship between crime and law enforcement. Former US Secretary of Labor and UC Berkeley professor Robert Reich presents increased law enforcement as a cheap stopgap for solving real problems of social inequity that prompt crimes in the first place. As he writes, the people in power can choose to engage in social investment or social control. Social investment serves to satisfy people so that they have no reason to go out and commit crimes. It includes funding “healthcare, education, affordable housing, jobless benefits and children.”

Social control, in contrast, takes people’s general dissatisfaction as given, assuming that people will just commit crimes and that’s the way it is. Under those assumptions, social control serves to maintain order over a population of people who are intrinsically motivated to commit crimes. There are reasons for these assumptions, if not good ones: social control is much cheaper than social investment and it maintains the present social stratification, which benefits those who are already well-off and powerful.

Defunding the police, then, is a means to increasing social investment, thus removing the dissatisfaction that prompts the need for social control in the first place. But, again you might protest: “Maybe social investment can minimize a lot of kinds of crime. People may not be intrinsically motivated to commit crimes. But aren’t there still a number of legitimate purposes for having police?” To answer these questions, we must consider the origin of modern policing. In doing so, we can see what, if any, are the legitimate purposes of police. It might also become clear that the dichotomy between falling back into a state of nature and maintaining the police as they are today is a false one. Defunding the police is not a view limited only to the most resolute of anarchists.

While people associated with the government who serve to enforce the laws have been employed since ancient times, the modern idea of a professional police force has its origin in London in the year 1829. This is very recent in historical terms and was actually a controversial move at the time. At the time, many London residents were opposed to the idea of a police force as they imagined it would function as a domestic wing of the military. The British people, though happy to occupy other people’s lands in their colonies, were, unsurprisingly unwilling to live under military occupation themselves.

Early founders of the London police force (among them, Sir Robert Peel) enumerated nine principles of good policing to inspire faith in communities that were not happy with the idea of being policed.  These principles were philosophically based. As a student of English philosopher Jeremy Bentham, founder of utilitarianism, Sir Peel justifies the police’s existence with a utilitarian argument. At the time, this utilitarian argument was fairly a progressive idea when crimes were previously punished with public executions.

He argued that if we are to maximize human pleasure and flourishing (according to utilitarianism) then it is better to prevent crimes rather than to merely punish them. Punishing a crime does not fix the harm the crime does and, in fact, the punishment, in harming the criminal, may actually lead to a net decrease in the amount of human pleasure in the world. By preventing crimes, there would be neither victims of crimes nor criminals who become victims of state punishment. Police help deter crimes merely by their presence. You’re less likely to steal a purse if a police officer is watching.

Now, the easy response to Bentham’s idea is the same as that levied against modern police: preventive policing does not resolve the problem of why people steal. If a person is starving, he may very well steal the purse anyway because he is hungry. But Bentham’s utilitarianism anticipates this objection: his principle of diminishing marginal utility states that the very rich do not derive very much pleasure from each extra dollar they get (they already have plenty) while starving people derive immense pleasure from each such dollar (for they have none). Thus, achieving the maximum happiness of the people “requires that the external instruments of felicity, whatsoever they may be, be shared by the whole number in a proportion so near to equality as is consistent with universal security.” In modern English, money and resources (“the external instruments of felicity”) must be distributed to increase equality up until that redistribution threatens to increase crime and disorder in a way opposed to utility (a state that would be inconsistent with “universal security”). Bentham thus supports resolving the root causes of crimes just as the proponents of defunding the police do. The parallel between Bentham’s view here and the view of people like Reich, Vitale, and Kaba who advocate social investment over social control is clear.

But suppose that we do redistribute wealth in this way. Won’t this solve crime? Why, again, do we need police? One might think that the social investment argument quickly runs into absurdity here since one might believe there exist certain crimes that social investment cannot prevent. In some cases, people are not driven by circumstance but by some natural flaw, be it greed, sociopathy, or irresponsibility. Given these facts, one might go on to argue that until we are able to eliminate these from the human condition, some crimes will persist and will need to be dealt with. And, attaching a personal cost, such as incarceration, to these crimes will disincentivize some people from committing them.

Now, abolitionists are not foolish or naive. An abolitionist can easily respond that many of these sorts of crimes go on with the police around anyway. If we are stuck with these crimes either way, it’s best to have them and not have police violence. They might argue like so: If social investment rids the world of most crime, if community care workers take care of most community problems without the risk of violence, and we still, time to time, have to deal with these irresoluble sorts of crimes, well, that’s a world we would be happy to live in. Here, I think, we may return to Peel and his seventh principle of good policing and see how his view of the police did not differ all that much from the abolitionists’ idea of community care workers:

“Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”

It is conceivable that many of the injustices perpetrated by the police today come from a failure to uphold this normative principle. Police, it seems, do not feel a connection to the rest of the public. It is hard to see how they could and simultaneously perpetrate violence against nonviolent criminals and protestors. This principle also requires police to trust the public. Police should not be opposed to the public but, as Peel writes, they should see themselves as part of the public, differing only in being the “only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence” (emphasis all mine). It is hard to see the police and the protestors of Minneapolis, or any American city, as being part of one community when they are so far opposed. And it is hard to see how tear gas and rubber bullets (among other “less-lethal” attacks on the public) promote community welfare. Protestors, like the ideal version of police, pursue community welfare. If our police recognized this, they would not be driven to view them as “other” and to attack them.

If you support the movement to “defund the police,” consider what you mean exactly by “the police” which you mean to defund. If you view racist violence and domination of the citizenry by those with a monopoly on state violence as essential properties of the police, then I have little to say against you. Defund those police. But if we take Peel’s view of the police as paid, full-time citizens who have a duty to community welfare, and if we remember the unfortunate flaws in the human condition that drive some members of the community to crime, I struggle to see how one could argue that we should entirely defund these police.

As Vitale argues, procedural reforms have failed and barely deserve the title of “reforms.” Seeking to abolish the police, given the present circumstances, is thus not an unreasonable position. But, as I hope to have shown above, it is also not obviously the best position. As a rallying cry it remains ambiguous. In the end, the choice is not between widespread social reforms to attack the root causes of crimes on one hand and having police at all on the other. As Bentham advocated, we can have a useful, publicly-approved police force alongside an equitable distribution of resources such that both prevent crime.

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Black Lives Matter: Australia

Protest in Australia; two signs are visible: one reads "lest we forget the frontier wars, black lives, white lies" and one shows a black and red image of Australia with the word "genocide" written on it

Our public discourse [is] full of blak [sic] bodies but curiously empty of people who put them there. Alison Whittaker

This weekend protestors for Black Lives Matter in Australia took to the streets in contravention of Covid-19 health warnings to join worldwide protests sparked by the murder of George Floyd to highlight police violence against people of color and to once again raise the issue of Aboriginal deaths in custody.

The statistics and the stories of Black deaths in custody is a vexed issue in Australia, and a national disgrace. In the 30 years since a royal commission was conducted, successive governments have failed to implement many of its key recommendations; and in that time 432 Aboriginal Australians have died in police custody. Despite the manifest violence, negligence, and displays of overt racism around these deaths, charges against police are rarely brought, and there has never been a conviction for an Aboriginal death in custody in Australia. 

Indigenous activists and families of victims have been trying, with only incremental and limited success, to elevate the issue in the wider Australian public. Most of the names and stories of these people are not known to most Australians. 

In a piece for The Conversation, Alison Whittacker, law scholar, poet and Australian Indigenous activist, writes,

“Do you know about David Dungay Jr? He was a Dunghutti man, an uncle. He had a talent for poetry that made his family endlessly proud. He was held down by six corrections officers in a prone position until he died and twice injected with sedatives because he ate rice crackers in his cell. Dungay’s last words were also “I can’t breathe”. An officer replied ‘If you can talk, you can breathe.'”

The statistics for Aboriginal incarceration in Australia are mind-blowing. In some areas in the country, Aboriginal people are the most incarcerated people on earth; They make up roughly 3.3% of the overall population but account for 28% of the prison population. Aboriginal women represent 34% of the overall national female prison population.

The 460 deaths in custody since 1990 is a terrible number, and to each belongs a story – a life, and then a death of indignity, of violence, of neglect. As in the US, in Australia it belongs to an historical legacy of rapacious, brutal colonial expansion. 

May 27 to June 3 is Australia’s National Reconciliation Week. These dates mark two significant milestones for Aboriginal people. One is the 1967 referendum, which for the first time recognized Aboriginal Australians as citizens. The other is the High Court native title decision known as Mabo, which overturned the legal doctrine of ‘terra nullius’ – the principle by which the Crown acquired sovereignty of the continent in 1788, on the basis that the lands were lands ‘belonging to no one.’ 

But there is still a long way to go for Australians to come to terms with the history of frontier wars, which morphed into state maintained forms of oppression and violence, and then into official government policy of forced removal of Aboriginal children from their families. This history is not visible enough to, nor unflinchingly acknowledged by, wider Australia. Nor are the tendrils visible which reach through that history into the present, holding Aboriginal people in all sorts of disadvantage. Disadvantage that is reflected in the statistics. As the Uluru Statement from the Heart says:

“Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.” 

What, at this time, now, can be said and done about the work of reconciliation? In 2000, 300,000 people walked across Sydney Harbour Bridge to show their support for reconciliation. This year, then, marks the twentieth anniversary of ‘the bridge walk’. Yet material change has been frustratingly slow, and in some indicators, things are going backwards. 

The 2018 Close the Gap report on Indigenous health and education targets and outcomes found child mortality at twice the rate for Aboriginal children, school attendance rates declining, and a persistent life-expectancy gap of almost a decade between Indigenous and non-Indigenous people. 

Perhaps reconciliation has had its moment. It was maybe only the first word Australians have learned in the lexicon of change and of justice. Recognition of the nation’s shameful history is a starting point on the long road to equality and justice. But perhaps it has become a platitude, a way for white Australians to settle the ledger of their guilt, a way to paper over deep-seated systemic injustice that is thwarting real progress for Aboriginal lives and that continues to create privilege for settler Australians.  

The problem, as many voices have been saying (for a long time but) especially in the weeks since the BLM protests broke out in the US following the murder of George Floyd, is that white and settler oppression of Black and Indigenous people is thoroughly baked in to the system; baked into the system of colonial expansion– which included slavery and dispossession under terra nullius (both mechanisms used to dehumanize people for the purpose of wealth creation) – and it is baked into its neoliberal iterations. 

Perhaps the problem, rather, is that we have been reconciled to these things, to the reality of Indigenous disadvantage and risk of police violence and incarceration, for too long. 

How, then, can we reimagine and re-engage the concept, the work of reconciliation, or do we need to move beyond it to another stage? The national conversation in Australia has been painfully slow to get going. 

National Sorry Day is marked on May 26th, began in 2007 when the Australian Government, following the release of the Bringing Them Home report, formally apologized to Aboriginal people who were forcibly removed as children from their parents in a government assimilation policy. 

Australian philosopher Raimond Gaita writes that the findings of the report “[were] a source of deep shame for many Australians, and for some a source of guilt” ( A Common Humanity, 1999, pg. 87). While, as Gaita observes, many people feel shame and guilt, many also resisted such feelings, and felt that they were being asked to take responsibility for past wrongs they felt no part of. 

The refusal of shame sometimes takes the form of national pride, in which being proud of one’s nation is mutually exclusive with acknowledging its brutal history and recognizing the remnants of that history. 

Those who hold this conception of national pride take the view that history in which racial injustice is afforded a more central place in our story and our journey to self-understanding is overly bleak. It is known by its detractors as the ‘black armband view of history’ and they argue that we should be focusing on trying to fix the current inequalities rather than looking backwards into a troubled past. This obviously ignores the fact that these current inequalities, created by that past, are able to continue because it has never been reckoned with. 

Therefore the corrupted, shallow conception of national pride can never do anything other than let the deep national wounds fester. To be authentic in our attempts to reconcile, we should not contrast our national truth telling with our national interest, and reconciliation cannot be about ‘moving on’ until the appalling statistical gaps between white and black Australia are well and truly closed. 

But the injustice is not just expressed in the material conditions (by these gaps), or even the systemic problems. Simply moving forward means that there is no proper acknowledgement that those who suffered —  and continue to suffer these injustices — are wronged, and that to be wronged, is itself a distinctive and irreducible form of harm. 

Jacqueline Rose, on the 2018 conference on ‘Recognition, Reparation and Reconciliation’ in Stellenbosch, South Africa, wrote: “thinking was not enough. Not that ‘feeling’ will do it either, in a context where expressions of empathy – ‘I feel your pain’ – are so often a pretext for doing nothing.”

Guilt and shame are part of a pained acknowledgement of wrongs we have committed or in which we are in other ways implicated. But they must also be part of what forces us to change the system and ourselves. 

As protests in response to George Floyd’s murder and in support of the Black Lives Matter movement against systemic racialized violence and oppression raged across the US last week, a Sydney police officer was filmed handcuffing and then sweeping the legs out from under a sixteen-year-old Aboriginal boy who had just issued a vulgar verbal threat; the officer slammed the boy’s face into the pavement. 

Shortly afterwards the New South Wales police minister defended the officer, saying he was provoked and threatened. The minister, in public remarks, expressed far more outrage at the verbal abuse from the teenager than at the officer’s brutal response. 

How can reconciliation occur if such blatant power differentials cannot even be recognized, if the historical weight of wrongs done to a people and the humiliation and disadvantage they continue to suffer is totally invisible? Nothing, then, has been reckoned with. 

The worst thing about this story from Sydney is the grim, horrific moral equivalence being drawn between a lippy teenager and an officer of the law, whose duty is to ‘protect and serve’ using brutal and retributive force.  

When a teenager can be face-slammed for giving a mouthful of foul language to a police officer and this act can be defended by his superiors as a response to a threat, we are nowhere. 

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When We Forget Our Dignity

Young person sitting on cement wearing a mask and holding a sign, turned away from camera. More people also sitting and holding signs are visible in the background.

The death of George Floyd should not have happened. An independent autopsy requested by the family concluded that Floyd died of asphyxiation from sustained pressure, disputing the Hennepin County medical examiner’s conclusion that he died from the combined effects of being restrained, underlying conditions, and possible intoxication. Based on footage now widely circulated, it is clear that Derek Chauvin unnecessarily knelt on the neck of a nonviolent offender who used a counterfeit $20 bill at a convenience store. According to the criminal complaint against Chauvin, the sustained pressure continued for 3 minutes after Floyd stopped moving and 2 minutes after another officer failed to find a pulse. 

Chauvin has been arrested and was charged with 3rd-degree murder and 2nd-degree manslaughter, which has now been elevated to 2nd-degree murder. Protests ensued soon after Floyd’s death, engulfing many American cities. Many protesters are not simply mourning the wrongful death of George Floyd but are also targeting their demonstrations against the systemic racial injustice that permits regular police brutality against people of color. 

“The protests are not necessarily about Floyd’s killing in particular, but about the savagery and carnage that his death represents,” Charles M. Blow writes. “It is an anger over feeling powerless, stalked and hunted, degraded and dehumanized.”

This anger over this degradation and dehumanization has manifested in peaceful protests, destructive riots, and reciprocal violence. As a video revealed Derek Chauvin’s neglect for Floyd’s pleas for air and his sustained pressure on the unconscious man, other disturbing clips posted on social media reveal violence by police against demonstrators and by demonstrators against other civilians and police officers. Viral clips are prone to misinterpretation because they exclude proper context and limit the complexity that often accompanies the captured event. Opinions can be formed on erroneous or partial recording of events. Even so, one thing is clear: the violence captured by these videos display violations of human dignity. 

Such an observation may seem so banal, so obvious that it is not worth even mentioning. But at a moment when protesters are lashing out against racial injustice and violence is increasingly justified as an appropriate response, the assumption of human dignity is no longer obvious. Therefore, it is worth contemplating what respect for human dignity entails, how it is violated, and how it can be protected.

Human dignity is defined as “the recognition that human beings possess a special value intrinsic to their humanity and as such are worthy of respect simply because they are human beings.” It is thought to be inherent, indivisible, and inviolable. The dignity of each human being is a basic foundation of Christian social thinking and enjoys broad consensus in many cultures and philosophical traditions. While the term “dignity” as used is thought to be a product of the Enlightenment, the notion the term conveys predates the Enlightenment by many centuries. Other philosophers such as Thomas Aquinas and Cicero imply the inherent value of human beings in their writings on natural law. 

It is this assumption of the inherent value of human beings that underpins human rights as a part of international law; dignity transcends state boundaries and is the fountain from which other rights flow. The concept features in the preamble of the Charter of the United Nations: “We the people of the United Nations determined […] to affirm the faith in fundamental human rights, in the dignity and worth of human persons, in the equal rights of men and women”. Human dignity is the first article of European Union Charter of Fundamental Rights: “Human dignity is inviolable. It must be respected and protected.” Countless constitutions of various countries contain some reference to dignity. Of course, simple observation demonstrates that mere codification of this ethical concept does not ensure its protection. 

“[T]hat same human dignity is frequently, and deliberately violated all over the world,” Professor Paul van Tongeren observes. “When people are murdered, tortured, oppressed, or traded it is indeed a flagrant violation of their dignity”. Other violations are argued to include humiliation, instrumentalization, degradation, and dehumanization. 

In response to the death of George Floyd and the resulting demonstrations, Robert P. George, an American legal scholar who has written about human dignity, wrote the following in a statement released on behalf of Princeton’s James Madison Program: “What unites us—what makes us ‘out of many, one’—is our shared commitment to principles we believe to be essential to the full flourishing of human beings, the principles of the Declaration and the Constitution. If we were to distill those principles to a core idea, it is, in my opinion, this: the profound, inherent, and equal dignity of each and every member of the human family. When we truly embrace that idea, we know that racism and racial injustice are unacceptable and must be resolutely opposed.”

Racism and racial injustice could then be understood as one of the many abhorrent effects of a failure to embrace the core idea of human dignity. The degradation and dehumanization of people of color observed by Charles M. Blow is another. Unjust murder is another. So, what can be done?

While institutional reforms are being demanded, social crises, such as the one the U.S. is enduring, also reveal the need for something more basic, more fundamental: ethics education. But this need must contend with the decline of philosophy, the relative absence of ethical training for students in academia, and the growing irreligiosity of America. The traditional reminders of human dignity are slowly dying and their death ought to be mourned, if not reversed. The U.S. is ablaze; a man was unjustly killed; peaceful protesters are met with force, tear gas, and rubber bullets; rioters exert physical violence towards their fellow civilians; a legacy of racism endures. Because this is what happens when we forget our dignity. 

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Call It What It Is: On Our Legal Language for Racialized Violence

photograph of Lady Justice figurine with shadow cast on wall behind her

This week, as seems to be the case every week in the U.S., we have seen Black people threatened with harm and killed for no other reason than their race.

I use “see” purposefully. The increased use of cameras to document the context surrounding the harassment, assault, and murder of Black people has raised awareness in recent years beyond the communities that have been experiencing this violence continuously. The incredible and outsized use of force and aggression towards non-white people is laid bare by the traumatic videos capturing these violent acts.

White supremacist violence from the past week includes the murder of George Floyd, an unarmed man, by four Minnesota police officers and the racist, false police report of Amy Cooper against Christian Cooper, a bird watcher in Central Park.

While both the police officers and Amy Cooper are no longer employed and may face further consequences, their actions form part of a much broader system of oppression and violence — a system we seem to lack sufficient moral language, or the proper legal framework, to fully capture.

Amy Cooper can face misdemeanor charges for making a false report under New York law. The penalty for such misdemeanors in the state is up to one year in jail, and a fine up to $1,000. The reasoning behind such statutes is that by making a false report you have done harm to the criminal justice system itself. The aspects of the law include a mens rea element (a state-of-mind aspect), requiring that you knew the report to be false, and an actus reas element (the behavior of the violation), which is actually reporting the crime to the relevant authorities. Cooper meets both of these elements pretty straightforwardly.

However, as this statute targets the harm done to the justice system and peace officers, it is easy to see that there is more to the moral and legal context of her behavior than simply tying up police resources.1 As is clear in the video Christian Cooper recorded, Amy Cooper focused on Christian Cooper’s race both in her threats to him personally off the call, and by heightening her vocalization of distress while describing him as “African American” to the operator. She thus put Cooper at significant risk, harnessing her power as a white woman and targeting him as a Black man, by directing police attention on him. The shared understanding of the danger that Christian Cooper experiences in the world is necessary for her threats to land and her harassment to be effective. As Christian Cooper said when explaining his filming of her harassment, “We live in an age of Ahmaud Arbery, where Black men are gunned down because of assumptions people make about Black men, Black people, and I’m just not going to participate in that.”

In order to capture the racist motivations behind Amy Cooper’s behavior, we could look to the legal category of hate crimes. These crimes involve specifically targeting members of specific groups. Those specific identities protected by hate crime legislation include race, gender, religion, age, disability, sexual orientation, as well as others. “Reckless endangerment,” for example, is one of the crimes that can be classified as a hate crime when targeting an individual based on their race. To include Amy Cooper’s behavior under this category would be expanding the current understanding of reckless endangerment, but it could be a route to adequately identifying the power being wielded and the threat being made.

This crime possesses both mens rea and actus reas elements; Cooper shows disregard for the foreseeable consequences of her action, and her behavior imposes a substantial risk of serious physical injury to another person. Note that the accused person is not required to intend (aim explicitly at) the resulting or potential harm in order to qualify as reckless endangerment. If, however, a case could be made that Amy Cooper was, in fact, intending for Christian Cooper to be harmed by her actions, the crime would qualify as some degree of attempted assault. Regardless, the distinction that is important here is that Amy Cooper is aware of the risk of harm she is placing Christian Cooper in by drawing police attention to him, but she is either disregarding that risk or marshaling that risk (bringing us into the realm of intentionality).

It’s not hard to imagine a potential objection claiming that Amy Cooper can’t know the danger her phone call places Christian Cooper in, and therefore can’t be held responsible for the harm that might ensue. But that would suggest at least culpable negligence, given the many recorded and shared instances of police violence towards Black people and the fact that Amy Cooper pointedly racializes the interaction.

To appeal to negligence, Amy Cooper would have to claim to not have recognized that her actions drawing police attention to Christian Cooper in Central Park would create a substantial risk of physical injury — she would be claiming to be unaware of the systemic violence that she is wielding.

To paraphrase Christian Cooper, we live in the world of Ahmaud Arbery, whose death again showed that assumptions made about Black men mean that even jogging while Black can be a serious risk. We also know that relaxing in the comfort of one’s own home can put Black people at risk of serious threat when confronted by police (#BreonnaTaylor, #BothemSean and #AtatianaJefferson). So can asking for help after being in a car crash (#JonathanFerrell and #RenishaMcBride), having a cellphone (#StephonClark), playing loud music (#JordanDavis), cashing a check (#YvonneSmallwood), or merely taking out a wallet (#AmadouDiallo).

We have also seen that the assumptions made by white people put Black people at risk of death when they sell CD’s (#AltonSterling), sleep (#AiyanaJones), walk from the corner store (#MikeBrown), play cops and robbers (#TamirRice), go to church (#Charleston9), or walk home with Skittles (#TrayvonMartin).

It is dangerous for a Black person to be at his own bachelor party (#SeanBell), to party on New Year’s (#OscarGrant), to decorate for a party (#ClaudeReese) or simply leave one to get away (#JordanEdwards), to lawfully carry a weapon (#PhilandoCastile), to shop at Walmart (#JohnCrawford), and to be a 10yr old walking with his grandfather (#CliffordGlover).

When police confront Black people, they are at serious risk to their life when they have a car break down on a public road or have a disabled vehicle (#CoreyJones and #TerrenceCrutcher), get a normal traffic ticket  (#SandraBland), or if they read a book in their own car (#KeithScott).

Police officers use excessive and lethal force when confronted with Black men that run (#WalterScott), ask a cop a question (#RandyEvans), or are in custody (#FreddieGray) or breathe (#EricGarner).

The list goes on. And it should feel overwhelming. The extent of the violence, and the context of the activities that put these individuals at risk, make any claim Amy Cooper has to being unaware of the danger she was placing Christian Cooper in dismissable.

In response to public outcry, Amy Cooper claims to have been scared, not motivated by race and not to have intended any harm come to Christian Cooper. However, both in our moral and legal evaluations of actions, whether or not someone intended the harm or potential harm is not the only standard we have.

Consider the following set of examples. Imagine I have friends over for a bonfire and am excited to use a new purchase “Rainbow Fire.” These packets, when added to a fire, make the flames appear in multiple colors — very exciting. However, because the packets involve chemicals in order to achieve the colorful result, they end up causing harm to those in close proximity to the fire. In effect, my adding the packets to the fire have caused harm to come to my friends. Our moral (and, roughly, legal) evaluation of my behavior is more nuanced than a simple judgment as to whether I intended to cause them harm or not.

Even if I wasn’t harming intentionally, I still was engaging in behavior that DID cause harm. It was a risk I should have been aware of. Packets that make fires colorful, after all, are pretty likely to be full of chemicals, and if I didn’t check the packets, I neglected dangers I should have attended to, and my friends have every right to be upset that I failed to take precautions and appreciate risks.

A step up from this kind of negligence is being aware of risks, but choosing to disregard them. If I read the packet but decided to proceed anyway, I behave “recklessly.” My friends will have moral (and legal) grounds to blame me.

But if I know that the packets will harm you (it’s a guarantee, not just a degree of likelihood), this goes beyond assessing risk or being ignorant of them. Acting knowingly is just short of intentionally, because though I might not be plotting your lung damage and was aiming at something else, I was aware that the lung damage was going to be a result of my behavior, not merely a risk disregarded. This is a level of mental engagement that we take more seriously, morally and legally.

So, even if we take seriously Amy Cooper’s denial of intentionally causing harm, we still have moral and legal concepts with which to evaluate her responsibility. She put Christian Cooper at risk, which is morally and legally problematic no matter what her mental state. And, unlike in my fire example above, she has weaponized race in a way we should hope to be able to acknowledge in our legal framework somehow. We need a means of capturing the unique abuse of power and the violence Amy Cooper threatened Christian Cooper with on the 25th of May.

I hope to have at least offered suggestions of standards that could be used. The mental state, behavior, and power structure that harnesses the racial targeting are all relevant to the legal evaluation of Amy Cooper’s actions. These considerations can give us further tools to establish the particular features of the racist harms in other violent behaviors being recorded every week.

 

1 We can note that often with false report violations, there can be civil suits filed. Civil suits, in contrast to criminal suits, are between citizens instead of between a citizen and the state. They focus on the damage one citizen caused another, rather than crimes (such as assault, theft, trespassing) that the state has determined its own authority to be justified. Civil cases include emotional distress, defamation, etc., and a successful result is typically financial restitution. Civil cases treat potential harms and exposure to risk differently, and so aren’t apt for this scenario.

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Lessons from ‘Queen and Slim’

close-up photograph of police car on street at night

[Beware of spoilers. Though if you didn’t see the film at this point, I don’t know what to tell you.]

Police brutality against black people is nothing new. Since slave ships docked in the U.S after the Middle Passage, law-enforcing entities have been antagonizing them. The only difference between then and today is that more and more of what is happening now is being documented. Back in 2015, it was reported that unarmed black people were killed 5x that of their white counterparts. Out of the 1,134 black males that were murdered by police that year, some of the standouts include Laquan Mcdonald, Michael Brown, Tamir Rice, Eric Garner, and a constitution-length list of names that suffered similar fates. 

Most recently, former police officer Amber Guyger entered the apartment of Botham Jean, a 26-year-old accountant, and murdered him claiming she mistook his apartment for her own. In turn, Melina Matsoukas’s film Queen and Slim seems to speak on all of the recent injustices against black people as it follows the story of two fugitives after they murder a police officer. However, despite the positionality of Matsoukas and her take on Queen and Slim being an activist film against police brutality, the film’s narrative takes a unique and ethical approach that considers all sides of the issue of police brutality and provides an honest take on blackness in the midst of it. 

Just as police brutality is nothing new, Queen and Slim is not the first film to comment on the issue. It seems like Spike Lee was ahead of his time with his 1989 classic Do The Right Thing, where the character Radio Raheem was murdered by NYPD, leaving a bitter ending for the film’s conclusion, and an equally bitter sense of resentment towards law enforcement. There’s a similar sentiment in Queen and Slim, but Matsoukas manipulates perspective and audience emotion through the different moral situations that Queen and Slim face. During the routine traffic stop that acts as a catalyst for the rest of the film, the officer that stopped Queen and Slim was inexplicably hostile and was looking for reasons to get violent with the protagonists. After drawing a gun on Slim and shooting Queen, there’s a brief sense of relief after the police officer is killed, as if the scene provided justice for the lives of those lost in the real world. That is until the implications of murdering a police officer come into full effect and Queen and Slim suddenly become fugitives.

Despite the brief moment of triumph, Matsoukas makes it clear to address the fact that the issue of police brutality is not one sided. In the latter half of the film, a teenage black boy murders a cop at a protest in solidarity of Queen and Slim’s run from the police. Not only was the officer that the boy killed African American himself, but the boy murdered the cop for no reason. The scene seems reminiscent of a real world instance, where police officers were murdered following the fatal shootings of black men. 

Perhaps Matsoukas was trying to convey the fact that anger in response to police brutality can exacerbate the issue rather than push for reform. On one hand, there’s the Black Lives Matter Movement, which has been advocating for justice for black people since George Zimmerman, Trayvon Martin’s murderer, was acquitted. But like the boy who killed a cop in Queen and Slim, and the man who killed cops in real life, there are those whose anger is misplaced and works against the cause for getting justice in the face of police brutality.

At the end of the film, right before Queen and Slim make their final escape, a black man who Queen and Slim thought were helping them, sold them out to the cops for a bounty placed on their heads. For the entire film, black people that were strangers to Queen and Slim helped them as they ran from the police, as they all believed in what the two protagonists did. How ironic, that it wasn’t a white person that ultimately led to Queen and Slim’s downfall, but someone that looked like them. But maybe to Matsoukas, this turn of events was necessary. When we think about police brutality, we think of a unified black community–one where people uplift one another in the face of tragedy. And to some extent, this image is true. But then, there are still those who, like the man who sold out Queen and Slim, simply don’t care. They have their own agendas, their own list of things they care about. 

In turn, maybe that’s why Queen and Slim should be considered as an honest take on police brutality and a glimpse of the black experience. The heroes of the story weren’t really heroes. They weren’t martyrs either. At the end of the day, Queen and Slim were two black people trying to survive in a world that thrived on the disenfranchisement of their bodies and sought revenge for their struggle to survive. Their actions ignited a fragmented consciousness that ultimately lead to their downfall. Perhaps Matsoukas was suggesting (or rather blatantly saying) that all black people have the potential to be Queen and Slims, and in the United States, blackness is the antithesis to justice.

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Childish Gambino’s “This is America”: Why It Matters

photograph of rap artist Childish Gambino, aka Donald Glover

Donald Glover has become a global phenomenon. As a comedian, Glover has left audiences laughing with his standup. As an actor, he captured audiences with his antics on the television show Community and continues to capture them through his television show Atlanta. But Glover’s comedy and filmography is not the only reason that he’s famous. Glover has an alter ego. As Childish Gambino, he gained repoire as a rap artist through successful projects such as Camp, STN MTN/ Kauai, and Because the Internet. As of late, Glover has been focusing on his filmography due to his show Atlanta and the fact that he plays Lando Calrissian in the new Star Wars Solo movie. But this past weekend, Glover made a return as Childish Gambino with his latest song, “This is America.” The song drew attention when Glover dropped a visual to accompany the song. It’s  full of relevant and powerful imagery that has characterized a part of the United States recently. Could Gambino’s new song be the wakeup call that America needs? Continue reading “Childish Gambino’s “This is America”: Why It Matters”

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Is the Media to Blame for Police Brutality?

Photograph of protest with boy in foreground, a sign in the background saying "end police brutality"

Police brutality is a painful and all-too-familiar concept when the plight of black people is brought up. Although police abuse of African Americans has been prevalent in the United States for decades, the years 2012 and 2013 are especially significant. It was in 2012 that Trayvon Martin was murdered by George Zimmerman. The following year, Zimmerman was found not guilty of second degree murder and was acquitted of manslaughter. Since then, there’s been a trend of police killing unarmed black people. Since Martin’s death, African American males such as Tamir Rice, Michael Brown, Philando Castile, and most recently, Stephon Clark have lost their lives because of police brutality. After so many lives lost, one might wonder why there is no solution to prevent the police from killing unarmed African American men. Police departments have tried retraining their officers with the hopes of them making the right decision when dealing with suspects– particularly suspects of color. Yet black men still lose their lives. Perhaps, in order to solve the issue of police brutality, we need to truly understand it. Although police brutality stems from bigotry and carelessness, especially the former, the key to why police officers kill black males might be rooted in how they developed their racist conventions. Could it be that the contemporary media landscape is contributing to the death of black males by police officers? Continue reading “Is the Media to Blame for Police Brutality?”

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A Question of Responsibility for Biased 911 Callers

The caller said the student had a gun. Placed on the night of May 1 to Colgate University’s campus safety department, the call provoked a full-scale lockdown of the upstate New York college. For four hours, students waited in their dorms as police combed the campus for the shooter. Soon, though, it became clear that the caller had been wrong. There was no active shooter. Instead, the caller had seen a black student walking into an academic building holding a glue gun.

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Facebook Live’s Violence Problem

On the evening of Easter Sunday, 74-year-old Pennsylvania resident Robert Godwin was enjoying a walk through his neighborhood after a holiday meal with his family when he was approached, at random, by self-described “monster” Steve Stephens.  Stephens, who was given the moniker “The Facebook Killer” by the media, blamed what was about to happen to Godwin on his broken relationship with his girlfriend, before shooting Godwin in the head, killing him instantly.  

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In Dana Schutz’s Open Casket, Interrogating the Aesthetics of Erasure

In the wake of numerous killings of black men and women by police, representation of black death in media and art has become a heated debate. The most recent turn in this discussion does not surround a recent killing, but a murder over six decades old. At the 2017 Whitney Biennial, a prominent art show in New York, artist Dana Schutz has faced sustained protest from artists and activists over Open Casket, a painting depicting the body of Emmett Till, a black teenager brutally murdered by two white men in 1955.

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In Ferguson, Divides Remain as a Community Moves Forward

Editor’s Note: This piece contains explicit language. Additional reporting by Amy Brown.

Bree, an African-American resident of Ferguson, Missouri, says he has been involved in activism for years. For the time being, that means selling buttons condemning the presidential candidates, namely Donald Trump, to passersby at a Ferguson strip mall. On a good day, he sells around 70 of the buttons, and, despite their politically charged content, he said rarely runs into any controversy – in majority black neighborhoods, at least.

“I keep myself in areas where my reception’s gonna be pretty cool,” Bree said. “Believe me, the whiter the area, the more of a problem I get.”

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“Okay Ladies, Now Let’s Get in Formation”

The Super Bowl happened last month, but the media still has not quieted down over Beyoncé’s half time performance, particularly the debut of her new song, “Formation.” For those who haven’t seen the music video or her Super Bowl performance, it is unlike anything the singer has done to date. It was culturally provocative, emotional, highly stimulating and an reminder of where Beyoncé came from. From Beyonce on top of a sinking police car in what seems to be New Orleans to her riding around in an old convertable with her hair in braids, the images leave little doubt in the viewers mind that Beyonce is black.

In the music video, released a day before her Super Bowl performance, Beyonce takes on all African-American stereotypes and does so in her own way. Beyoncé and Jay- Z, her husband, have been publicly quiet on the racial conflicts of the past few years, including the Black Lives Matter movement. But the couple has taken a more public role in racial dialogues. Beyonce’s “Formation” in combination with Jay-Z’s business Tidal donating $1.5 million to the Black Lives Matter program makes their position on these issues fairly clear.

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Should You Watch Samuel Dubose Die?

The articles are everywhere. Headlined by an eye-catching, caps-locked “WATCH,” they offer the reader the opportunity to watch someone die. The person in this case is Samuel Dubose, a Cincinatti resident killed by a policeman at the University of Cincinatti, Ray Tensing. The video is powerful, offering a disturbing look into police brutality in America. Its role is also central in bringing Tensing to justice, as his arrest was paralleled by the prosecutor office’s release of the video. But should you watch the video – one that graphically captures the last minutes of Dubose’s life?

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Black vs. White Space in McKinney, TX

The seemingly endless events of police brutality and the deaths of unarmed black people of the United States has captivated and divided our country. The most recent in the saga is the events of the infamous pool party of McKinney, Texas. Videos of the police officer under question, Officer Eric Casebolt show him arriving at a teenager’s pool party with mostly people of color in attendance and throwing a young bikini-clad fifteen-year-old to the ground, placing both knees and his full weight on her back, and shoving her face into the ground. He then threatens other kids who run to help her by pointing his gun at them. All attendees were unarmed and nonviolent.

There has been discussion over this incident, and much of it is argument over whether Officer Casebolt is racist or not. Those who defend Officer Casebolt argue that he had just responded to two suicide calls and was emotionally unstable at the time. But maybe this argument of whether the officer is racist or not is just a distraction from the real issue at hand, which is why did the police come in the first place? I believe the answer lies in the concept of white space vs. black space, who belongs and who does not, and how this tension leads to racial profiling in our country.

Before the officer arrived at the scene, the teens had been pestered by the security guard of the pool who continuously insinuated that they shouldn’t be there, though according to attendees, they had done nothing wrong. The security guard accused them of playing music too loudly and not having permission to use the pool. The security guard supposedly told them that their music had to be turned off, though attendees swear that the music was edited. Most teens in attendance lived in the community that owned the pool and thus had the right to its use.

Why would the security guard be uncomfortable with a large group of teens when there were groups of white teens at the pool as well? Why would their music be a problem if there were no curse words in it? Why would they assume that the teens didn’t belong, though most of them lived in the neighborhood?

On an episode called the “Birds and Bees” on NPR’s This American Life, one of the voices heard is Nikki Jones, who discusses how Americans racially code space. She says, “The ghetto itself is believed to be carried on the bodies of black people…that presents special dilemmas when black people are in white space. What is white space? Almost anywhere else. In these white spaces, black people have a special burden and they face a number of dilemmas. They have to prove that they belong there, the burden is on them to prove that they belong in a particular space.”

This rings true in the tale of the McKinney pool party. These teens should not have had to convince anyone that they belong in the neighborhood in which they live, let alone be subject to police violence while trying to prove their legitimacy. McKinney is not the ghetto, it is an average middle class suburb of Dallas, TX. By Nikki Jones’s logic, McKinney is white space, no matter how many people of color live there.

When examining events of police brutality against people of color, it is easy to get distracted by the violence. Though we need to discuss the violence and work to end it, our conversations must not end with “agree to disagree” moments of whether police violence was racist or not. Let us not forget to question why the police stopped these victims in the first place. Let’s examine if there was legitimate cause or if it was simply because they were a black face existing in a white space.