It is a testament to the depth of the wounds of systemic racism in America that the protests sparked by the police murder of George Floyd have continued with such intensity for so long. Especially during a public health disaster, it takes a lot to get people to sustain this kind of action and passion. But with literally centuries of injustice unaddressed, it apparently took that final spark to start a conflagration.
That is both tragic and hopeful. The centuries of tragedy, of murder upon murder upon oppression upon oppression, are shameful to contemplate, especially because so many people knew about it but could not get everyone else to focus on such chronic injustice. The hope now is that this is, at long last, the moment when things start to change in fundamental ways.
In a column last week, I argued that this change should involve "leveling up," meaning that giving people equal protection means moving currently disadvantaged people up to the best levels of treatment that society already offers its most fortunate citizens. We could level down by creating a terroristic police state that trains its guns and violence against everyone regardless of race or class, but although that would be equal treatment, it would not be justice.
Here, I want to continue my discussion of what it means already to be at the top level of social status in the sense of how the system treats people. That is, if we succeed in leveling up, what will the currently disadvantaged people be able to enjoy?
As it turns out, however, even that would not be enough -- as important and essential as it is. Even the people like me at the top level know that random police violence could possibly be visited upon us under certain circumstances. After, or while, we level up, we need to raise the bar and change the way the law enforcement system treats everyone. What would that look like?
In last Tuesday's column, I grappled with the issue of how a white, upper-middle-class male professional can possibly contribute to the current discussion of police practices and abuses. Maybe, as the actor Kevin Bacon recently put it, "it's a good time for old white guys like me to just shut up and listen." Given that I have the privilege of this writing platform, however, I feel that I should at least try to use it to say something that might be helpful in these scary times.
The big message in my column last Tuesday was that people like me have every reason to expect -- and everyone else should also be able to expect -- that the police will not overreact to what we do. I shared a somewhat unusual story about a time when I accidentally found myself on the wrong side of fences separating the South Lawn of the White House from a gaggle of tourists. Had I not been a middle-aged white guy wearing LLBean summer casual clothes, we all know that the situation would not have gone well.
Moreover, I pointed out that the police (in this case, the Secret Service) were not even provoked when I "gave them attitude," which I later realized was the true measure of what privilege looks like. No one had ever said to me, "Do not look an officer in the eye, and for God's sake do NOT in any way show disrespect." It is not that somehow my parents had failed me, because this is simply not advice that people like me need to have hammered into them at a young age.
The murder in Atlanta of Rayshard Brooks last Friday captured such expectations perfectly. Had I ever fallen asleep at a drive-thru, or frankly anywhere else in public, I would have expected to be respectfully woken up by a passerby or a police officer. If I were intoxicated in such a situation, the worst I might expect is a DUI charge, although even that would possibly not happen if I (like Brooks) said that I could simply leave the car in a parking lot and walk home.
Again, my message here is that my presumptions should be everyone's presumptions. Everyone should be treated decently, without fear of being beaten or killed by police who escalate the situation. There is no trade-off here, because the sum is not zero. I do not have to give up any of my current privilege to allow others to enjoy the same. At that point, it would no longer meaningfully be called "privilege," of course, but that is precisely the point.
One of the ways that I have noticed my privilege over the years is in my easy presumption that I can travel essentially anywhere that I want to travel. Even within the U.S., there are places where I might feel endangered, but never would I feel that the police were my enemy. And with rare exceptions, the locals treat me as if I am welcome, or at least tolerated.
When I was in my late twenties, I took three driving trips across the country, two on my own and one with a white male friend. This necessarily involved making stops for gas and food in remote places, staying overnight in cheap hotels next to the highway, and so on. The worst feeling that I ever experienced was merely that some people at roadside stops in Wyoming and Nebraska were looking at my preppy clothes and sneering at me. Never once did I feel in danger.
I thought to myself back then, "What would this be like if I were black, Latino, Middle Eastern, or anyone who doesn't 'look white'?" (I will set aside here the overlapping but distinct issues that I would have confronted as a woman -- especially traveling alone -- but a reckoning on those issues is also long overdue.) Not just the local police, but everyone I came in contact with, would have represented at least the possibility of a dangerous situation.
At that time, I had not yet heard about the Green Book (formally titled The Negro Motorist Green Book), which was published and regularly updated from the mid-1930's through the mid-Sixties, which was quite literally a survival guide for blacks who traveled across the country. Even so, and even though my travels were in the late 1980's, it was obvious that part of my privilege was simply that I had the freedom to travel without too much concern about being targeted by local cops or citizens.
As I noted above, however, it is not true that even someone with my privileges has nothing to worry about. A Dorf on Law reader recently brought to my attention a fantastic new article in Medium, "Confessions of a Former Bastard Cop," which ought to be required reading for everyone who wishes to weigh in on the policing issues facing this country. Even for someone like me who thinks of himself as quite aware of the systemic part of systemic racism in policing, it is an eye-opening piece.
Here is (by the author's own description) the most important part of article (formatting in original):
"If you take nothing else away from this essay, I want you to tattoo this onto your brain forever: if a police officer is telling you something, it is probably a lie designed to gain your compliance."Do not talk to cops and never, ever believe them. Do not 'try to be helpful' with cops. Do not assume they are trying to catch someone else instead of you. Do not assume what they are doing is 'important' or even legal. Under no circumstances assume any police officer is acting in good faith."Also, and this is important, do not talk to cops."I just remembered something, do not talk to cops."Checking my notes real quick, something jumped out at me:"Do"not"fucking"talk"to"cops."Ever."
Coming from a former police officer, those words (and his supporting evidence and arguments) are pretty stunning. To emphasize his point, he adds this comment later in the piece:
"If you take only one thing away from this essay, I hope it’s this: do not talk to cops. But if you only take two things away, I hope the second one is that it’s possible to imagine a different world where unarmed black people, indigenous people, poor people, disabled people, and people of color are not routinely gunned down by unaccountable police officers."
But is he only aiming his comment at non-privileged people? Is it OK for guys (and I do mean guys) like me to assume that the cops are on our side? The author certainly does not say so, and nothing in his argument suggests that police officers will not lie to people like me if they want to.
Notwithstanding my privilege, I do worry about interacting with the police. Years ago, I moved into a house in a Milwaukee suburb, and I found that a previous owner had left a box of bullets in a basement closet. Having no desire to keep them, and realizing that it would be a terrible idea simply to throw them out with the garbage, I took them to the local police station. I explained the situation, and I was surprised when the officer demanded that I provide my name and address. I was so stunned that I complied, but I was quickly troubled by the idea that there was a police report with my name on it that connected me to a box of bullets. Why should my being a responsible citizen result in my name being put on a police report? In a similar situation (not with bullets this time, thankfully) more recently, I said to the officer, "I decline to provide my name," and he angrily said, "Then I'm not going to help," even though I was reporting something that had nothing to do with me.
More worrisome was a moment during my clerkship in Oklahoma City, when I went to the local convenience store one evening and stood hoping to buy a candy bar while waiting for the clerk to appear (presumably after taking a break in the back of the store). Suddenly, a young police officer rushed in and told me that I had to get into the back of his police car. As he was forcing me out the door, another (white male) customer arrived, and he was also grabbed and pushed into the car beside me. As my co-detainee was being shoved inside, the officer closed the door on his legs and started kicking the door to close it.
It turned out that the convenience store had been robbed, which does not explain why I would be a suspect as I stood idly waiting to pay for a Hershey bar -- or why the officer roughed up both of his detainees. Because I was clerking for a federal judge, I asked him the next day if there was anything I could do. The (white male) judge, who had previously been the state attorney general, smiled and said: "No, you should just drop this. You do not want to cross the police. They can make your life miserable -- and mine, too, frankly." I am not at all equating what happened to me with what happens to far too many people in this country, but what I discovered was that there is effectively no way to address even relatively harmless abuses.
And that is the other big lesson about systemic abuse of power. The system encourages the police to show venom toward non-privileged people, but what seems to especially motivate bad police behavior is being told that they have misbehaved.
For example, I recently found an Amazon Prime series called "Bosch," which is based on a series of crime novels that I had never heard of. Getting even a few minutes into the first episode (which aired in 2014), I noticed two things. First, this was just like every other cop show in depicting the grievance that the police harbor regarding being supervised or disciplined. And second, watching that show this week was an especially fraught experience.
Like other police procedurals (especially the long-running CSI), the shows are homages to the police, even when the stories depict the unpleasant side of policing. In "Bosch," the main character is an LAPD detective being wrongly sued by the widow of a suspect whom Bosch had shot in an alley when the suspect pulled what looked like a gun out of his pocket. There was no video of the interaction, and the only claim by the plaintiff was that Bosch had planted a gun (based on no evidence).
All of the grievances were there: a sneering attorney who was willing to twist everything to make the cop look bad, the sense that "you have to do what you have to do," and on and on. The cops hate the courts, the lawyers (including the prosecutors), internal affairs inquiries, the politicians, and certainly any attempt at citizens' oversight of police use of deadly force. In "Bosch," the police captain who is most opposed to a politician who has proposed reining in LAPD abuse is played by Lance Reddick (who played Lt. Daniels in "The Wire" and who is black), and his entire agenda is to "protect our house."
These shows are almost always written by former cops, or they have "consultants" who are retired police officers. The idea that any case like the one in "Bosch" would have been brought at all is farfetched in the extreme, much less that he would actually lose. (In a later episode, the jury found for the plaintiff but awarded $1 in damages.) What makes real-world officers like those in Buffalo shove a protester and then leave him bleeding on the sidewalk -- with one officer yanking the other away to prevent him from helping -- must surely be this overwhelming sense of grievance. That is certainly what we are seeing from local police union representatives who rant in front of cameras about the injustice of the very idea that police officers could be disciplined or held criminally liable.
In the end, then, the privilege that people like me enjoy in our dealings with the police (as well as in every other aspect of life) is important but still limited -- limited by the extent to which we defer to the police. If I tried to intervene to stop an act of police brutality, I would risk being brutalized myself, even with all of my privilege.
We desperately need to level up, to bring everyone up to what the privileged members of society take for granted. That is a lot to try to accomplish, but it is a bare minimum. Unaccountable power, especially backed up by the gun, is a disease that has been killing people. The current moment is an attempt to find the cures to that disease. Accountability is essential.