-- Posted by Neil H. Buchanan
As 2014 ended, the politics of race and policing had once again emerged as a prominent issue in this country. The killing of a young, unarmed black man in Ferguson, Missouri, followed by the prosecutor's failure to aggressively pursue an indictment of the officer involved, resulted in nationwide protests. The choking death of another African-American man on Staten Island, followed by another non-indictment by a grand jury, moved the tragedy and the debate into New York City, where the combination of media coverage and a confrontational approach by the head of the police union have made the situation downright scary. Sadly, similar cases seem to arise weekly, if not daily, around the country.
I have been hesitant to write very much about these issues. I did use the Ferguson story as a leaping off point for two posts in early December (here and here), in which I discussed "individualized justice" in the context of civil damages, rather than in the criminal context. Today, I will take a different approach. As a middle-aged, upper-middle class Anglo-Saxon Protestant, I have no direct experience with the worlds in which Michael Brown, Eric Garner, and others lived. In one sense, therefore, when I hear someone testify to their bad experiences, all I can do is sit in wonder at how this could happen. It recently occurred to me, however, that one way to contribute a small data point to this conversation is to describe a "dog that didn't bark," that is, an instance in which I had an interaction with law enforcement that ended without incident -- but that, I have little doubt, would have played out quite differently if I were not in a position of social privilege.
In yesterday's New York Times, Charles Blow's op-ed column captured this idea from a different angle, describing an "arrest without incident" of a middle-aged white woman who had gone on a rampage, shooting at multiple people in Chattanooga, pointing a gun at a police officer, and leading officers on a chase. As Blow writes, "Surely this was not going to end well." But it did. The suspect was, indeed, arrested without incident. That is the dramatic version of unequal treatment. My story is the prosaic version, not of a person who did something horrible but was not mistreated, but rather of a person who could presume that nothing would go wrong, even though he had made a mistake.
In the summer of 2008, I was walking along Pennsylvania Avenue in Washington. As it happened, the White House was on the path between my law school and the movie theater where I planned to see a matinee. (It was a Saturday, but I had been working at the office that morning.) When I got to the White House, however, the street was suddenly closed off to all traffic, including pedestrians. A Secret Service officer barked at people to find another way around. I walked south, and I soon found myself in a parking lot where some temporary dividers directed pedestrian traffic. I followed, but at one point, there was a break in the dividers, and it was not obvious which was the correct path.
I soon found myself emerging from a grove of trees on a driveway that was on the wrong side of two low fences dividing a gaggle of tourists from the White House grounds. A group of officers, two in a car and two on bicycles, were talking amongst themselves about 200 yards in front of me. I had the choice of turning back, but I feared that this would make it look as though I was fleeing. I decided to continue to walk forward, waiting for them to notice me.
When they did, one of the officers in the car shouted on the bullhorn: "Step over the fence." As I noted above, there were two low fences to my right, divided by a six-foot strip of grass. I stepped over the first fence and stopped walking, waiting for further instruction, thinking that if I stepped over the second fence, I would be disobeying orders and presumed to be fleeing. At first, the officers did not notice that I was waiting. Then, the bullhorn again, sarcastically: "It's not that difficult. Step over the fence." I pointed to the second fence with an expression saying, "This one, too?" Bullhorn, even more sarcastically: "It's not that difficult!"
My first reaction was not to feel relief or gratitude that I had avoided arrest, but annoyance that I had been ridiculed for no good reason. As I walked away, the officers watched me from a distance, and I glared back at them until I was out of sight. Nothing further came of the incident, and I was on time to see my movie.
Looking back on that day, I am constantly amazed by how easy it was for me to presume that, after I had found myself on White House property that was not open to the public, I could then press my luck and scowl at the officers as I walked away. Although I was not conscious of it at the time, I took my privilege for granted, assuming that a white man in his forties, wearing LLBean shorts and a polo shirt, would not be punished for acting defiantly to federal officers. What was on my mind was not, "Whew! I'm glad that taking that wrong turn didn't get me arrested," but "Why do they think they can treat me with such disrespect!"
Can I prove that this would have gone differently if I had been 18, African-American and wearing a hoodie? (Or 25, Middle Eastern, and wearing a robe?) Of course not. And I am certainly aware of the recent incidents at the White House that suggest that the Secret Service has been generally lax, making it possible that the response even to someone like me should have been more aggressive.
Even so, the more important lesson to me is not in predicting what the outcome would be for someone else, but in noting what I did not even have to think about. As an analogy, I recall a group exercise in law school in which the women and men were separately asked to describe the measures that they took to feel safe while walking down the streets of a city. The women talked about carrying keys between their clenched fingers (ready to use as a defensive weapon), checking the back seat when they got in their cars, and so on. The men sat mute, looking at each other as if they had been asked what they would do if a meteor were to hit them. Our list was empty.
The outcome for me that day in Washington was the correct outcome. I was in the wrong place, but I obviously had done nothing really wrong. Sending me back to the right path was all that was needed. That I fully expected nothing more than that to happen, and that I was actually upset by being talked to disrespectfully, might make me seem presumptuous. And I am, because I have spent my whole life learning that I can presume certain things about my world. That is not possible for many other people in this country.
Finally, let me close by noting that nothing I say here should be viewed as a blanket condemnation of law enforcement officers. The most eloquent statement that I have heard, made all the more eloquent because it was delivered completely extemporaneously in front of reporters, was by Cleveland Browns receiver Anthony Hawkins. In answering a question about whether he should apologize to the police for wearing a T-Shirt calling for "Justice for Tamir Rice and John Crawford" (two Ohio victims of police bullets), Hawkins said: "My mom also taught me just as there are good police officers, there are
some not-so-good police officers who assume the worst of me without
knowing anything about me for reasons I can't control. ... A call for justice shouldn't warrant an apology." I urge readers to view the six-minute video.