By Steve Martinot
The video of police stopping three young black people, two men and a woman, for jaywalking, that ends with the woman screaming in the distance as cops throw her to the ground and twist her arms behind her back, becomes one of a growing category. This one happened May 2, 2014, in Berkeley. That same week, two others emerged, one on BART (the Bay Area subway system), and the other in Oakland. Both end with women screaming in the distance. On May 20, in Salinas, 60 miles to the south, Carlos Mejia was shot down on a street corner in broad daylight, on video. And Cecily McMillan, who went into convulsions after being beaten and gassed during the police suppression of Occupy Wall Street, was convicted of felonious assault on a police officer. These instances of police harassment and violence are among dozens that have occurred and been recorded on video in the last months.
The videos give us the ability to examine these incidents more carefully. Certain common traits become perceivable when we do. Although, over the years, the primary targets of police violence like this have been people of color, more and more white people are being added to the list of victims. The police excuses stay the same – “I felt threatened.” “The officer was only doing his duty.” “We have investigated and found that the officer acted properly, and that no crime was committed by the officer.” Etc. But somehow, we don’t hear as much about “rogue cops” any more. The police have retreated to more technological responses. They are now promoting a law making it illegal to video police in the “line of duty.” And a small news item recently reported that Apple is working on a device that, with the click of a button, will shut down all iPhones within a given radius of a police action. While the general term for this is “unaccountability,” it reflects a sense that “rogue” has become more generalized or departmental.1
If a common structure to these acts of police violence can be discerned, they would lose their individuality altogether, and become evidence of departmental or national police policy. And indeed, common structures appear. For one, there often seems to be an absence of probable cause, and a clear withholding of due process. We have learned to expect multiple changes in the officer’s story, complete with unexplained contradictions. In the general case, by simply putting the officer responsible for any malfeasance on paid leave, and in almost all cases performing exoneration, the department is clearly looking out for its members, though claiming to do a careful investigation. When such commonalities of style and procedure become discernible, across the country, it suggests that police are not simply responding to the moment or an individual, but rather are enacting a prior project for which there has been more universal training.
Broader aspects of commonality present themselves. In cases of civil disturbance, such as the attacks on Occupy in New York or Oakland, or the brutal dispersion of a Cinco de Mayo picnic in a city park, the event is blamed on those attacked, despite the fact that nothing untoward had been happening before the police arrived. Iconic of this reversal of onus is the case of Cecily McMillan, a woman in Occupy Wall Street who was gassed, beaten and groped by police, and went into convulsions, yet was charged and convicted of assaulting an officer. What is now wholly general is the existence in every state of enhanced obedience statutes, which are the foundation for police impunity. Under these statutes, a person who, as a matter of self-respect, refuses a police demand that is humiliating can be charged with disobeying an officer and arrested – that is, criminalized for affirming self-respect. This means that the police divide the population between those whose humanity will be disparaged (the profiled), and those whose humanity will be honored (the unprofiled). As such, in the context of racial profiling, the police define the new color line.
The Jaywalkers of Berkeley
It was 10 pm, at the end of the semester. Three black university students, two men and a woman walking together, were stopped by two cops for jaywalking in the student area of town. When the video begins, one of the students is in handcuffs, standing in the traffic lane, while the other two are questioning the cops as to why they have put their friend in handcuffs. They are understandably upset by this. In response, they are simply told to back away and stand on the sidewalk.2
As the incident develops, the students’ questions get tinged with outrage, a sense that they are sick and tired of being stopped by cops – for walking while black (like driving while black), and of the racial profiling that is clearly being enacted. Their outrage escalates as a third and fourth cop show up, and then a fifth.
Eventually, one cop tries to grab the arm of the woman. She tells him not to touch her, and when he tries again, she leaves. He chases her, grabs her around the waist, and throws her to the ground. He twists her arms behind her back and handcuffs her while she is screaming in pain.
At an NAACP town hall meeting on police-community relations a week later, many people came forward telling similar stories of pointless stops that are used to simply delay the target subject or find a reason for arrest. One white student told the story that she was walking with a black student, jaywalked, got stopped, and only the black man was put in handcuffs.
The stages of development in the incident of the three jaywalkers are important. Some cops in a squad car see the students jaywalk, and intercept them. Jaywalking is an infraction, for which only a citation is normally issued. Instead of issuing a citation, the cops put one of the students in handcuffs. Since the students didn’t run, nor withhold ID, the only thing that happened is that they disagreed with being stopped, and objected. We know this is the case because in a different meeting to answer questions about this incident, the police quote what these students said, and the objections they raised. In other words, this man is in handcuffs because he has talked back. That’s when the cops call for backup. Now, the three of them are standing there, talking to the cops in their own voice, not in a polite voice nor in a voice that recognizes dictated obeisance. And eventually, it reaches the final stage of physical harassment, grabbing the woman, threatening her by grabbing for her, and then physically hurting her in order to arrest her.
It doesn’t matter that all this is a problem the cop created by not issuing a citation. The onus of the situation is shifted onto those who speak for themselves. And all they are doing is speaking. Whatever they say becomes a source of further police harassment. They let it be known that it is because they are black, which the cops of course deny. As the incident moves through its stages from infraction to harassment to violence, what drives its transformation is people standing up for themselves, demanding respect by demanding to know why the police are doing what they are doing.
At the police meeting about the incident, police said that officers are not required to inform someone prior to handcuffing them. That is simply astounding. It means that a cop can handcuff someone arbitrarily, without discussion, due process, or respect. As the jaywalking incident shows, speech can get you put in handcuffs now. It is a clear demonstration that the police have become a law unto themselves. We are no longer secure in our person in the face of that arbitrariness. This very rule, which the police trumpet about themselves and their power without shame, is itself a violation of human rights. And that means that human rights are violated on the streets of US cities every day.
In other words, the objections of these students are interpreted as resistance. At the police meeting, the Police Chief himself said, “The remedy happens afterward.… The courts have not held that people are allowed to fight with officers during a stop.” So much is contained in this statement. He is stating baldly that, in the moment, there is to be no due process, and that what the students did (speak up for themselves) is interpreted as fighting back. First the police create the incident, and then create the rationalization for violence before the fact by seeing speech as “fighting.”
Having created a situation of arbitrariness to which objections and questions are relevant in terms of self-respect and human dignity, but which the police choose to see as resistance, the police have created a double bind. In the context of harassment for speech, objection is called for in the name of self-respect and self-defense, and self-defense is seen as violence, as fighting, and hence as criminal. There is an intention here insofar as the police create the situation whose arbitrariness calls forth objection, where objection means disobedience in violation of the law, where the law is one of obedience to the police, who thus become a law unto themselves. To defend one’s dignity is to be criminalized, and not to defend one’s dignity is to be reduced to lesser social status in the face of harassment. That is the double bind.
It is a double bind that is already contained in the racial profiling that prepares the act of handcuffing, as the preparation for violence. Profiling has nothing to do with law enforcement (which is the usual mode by which police approach white people). In law enforcement, a crime is committed and the police search for a suspect. In profiling, the police commit an act of suspicion, and then search for (or create) a crime to pin on the target of their suspicion. In other words, the purpose of profiling is to prepare this shift from law enforcement to a criminalization procedure.
The existence of this double bind brings to mind a scene that Richard Wright describes in his autobiographical book, Black Boy. Wright had gotten a job in a lens grinding shop (in Jim Crow Mississippi, 1920s), working with two white men named Reynolds and Pease.
[Pease approaches Wright and says] “Richard, Reynolds here tells me that you called me Pease.” … I stiffened. A void opened up in me. I knew that this was the showdown. … If I had said: No, sir, Mr. Pease, I never called you Pease, I would by inference have been calling Reynolds a liar; and if I had said: Yes, sir, Mr. Pease, I called you Pease, I would have been pleading guilty to the worst insult that a Negro can offer to a southern white man. (189, HarperPerennial, 1998)
There is no way out. The double bind’s purpose is only to terrorize because it marks the preparation of violence against its victim. It is an institutional double bind insofar as either fault committed by Wright in that situation is already established as a cultural institution – just as the ability of the police to profile, to use color as a source of suspicion, has been legitimized by Supreme Court decision (see Michelle Alexander, The New Jim Crow).
Alexander mentions two cases that provide the police with legal precedents for using color or ethnicity as a source of suspicion. One is Terry vs. Ohio (1968), in which “strange behavior,” which includes appearance, can be used by a police officer as probable cause to stop and frisk. Alexander quotes Justice Douglas, the lone dissenter in Terry, as saying that this decision takes “a long step down the totalitarian path” (62). The other case is United States vs. Brignoni-Ponce (1975), a “driving while brown” case in which the court affirmed that “race can be used as a factor in discretionary decision making” (128). All recourse to holding police accountable for racial harassment was then closed by Alexander vs. Sandoval (2001), which denied the ability to sue on the basis of perceived racial bias, and thus ended racial profiling litigation (134). Today, the ability of the police to create situations by demanding obedience where resistance would be the natural response has been rendered culturally acceptable.
The police shift from law enforcement to profiling is a political shift. It moves the incident to the political domain. When the students point to what the cops are doing with terms that represent their own past experience, it signifies that they know what is being done to them. Their objection signifies an insistence on a social status that is being withheld from them (the social status of whites). It is this withholding of social status that has become culturally acceptable, and an insistence on that status that is politically criminalized by police activity. The police insist on legalist and judicial terms for their procedures, but the students are naming its political motivations.
The students are thus speaking (and acting) in opposition to the political structure of police actions. In that sense, their resistance amounts to a form of insurgency against illegitimate power (illegitimate because racially informed, and informed by impunity). “Insurgency” here is simply a political term that signifies the assumption of a form of political status by people from whom political status is withheld. Even the power to walk away, having done nothing but speak and object to being touched, is seen as insurgency.
Generally, when police speak about cases of arrest for disobeying an officer, or resisting the officer in any way, they refer to individuals as “suspects.” But this is an egregious misnomer in such cases, and only serves to further deny the social status of the subject, already reduced by police harassment and impunity. The term refers to someone who is suspected of breaking the law. But the only “law” the person in question here has broken is that which the police have become in their person, by harassing, or by issuing commands, etc. The police cannot “suspect” the person of having committed a crime since it is police action that has criminalized the person, not the person’s action. The person is charged with violating only the police themselves as the law. The only relation of engagement here is that between the person and the officer, and it is the absoluteness of the latter’s authority that the person is calling into question by affirming autonomy (the right to speak or question) – which can be seen by that authority (the officer) as an act of insurgency. But one cannot be “suspected” of having jaywalked. Either one is seen doing so or not. In using the term “suspect” for those students, the police are proclaiming them “insurgent” – in order to valorize their arbitrary actions (handcuffing, pushing people around, and chasing them down) as counterinsurgency.
We are no longer dealing simply with racism, or profiling. The need for a politics of counterinsurgency in daily police activity signifies that the police are an authority against which questioning becomes insurgency, by dishonoring their system in demanding fairness.
“Insurgency” and “counterinsurgency” might seem to be grandiose terms to use for these small daily incidents. But such usage follows from recognizing a shift to the political domain. To see the political meaning of the incident requires the use of such terms.
One other aspect of this situation identifies the politics of such incidents as this. There is no due process. In a just and democratic society, a person is not to be deprived of freedom or property without due process. As that famous document states, “No person shall be … deprived of life, liberty, or property without due process of law.” For the police, due process comes afterward, and the Police Chief has proclaimed that. But “afterward” is not due process. Due process means that one can answer the charge that can possibly lead to loss of freedom or property. What happens “afterward” is “appeal.” Appeal is what one does after one feels the state has committed a wrong. Appeal is not due process, it is appeal. Due process means one cannot be deprived of freedom without a fair hearing. It means one cannot be deprived of one’s freedom without having something to say about it. But today, in police procedure, one is to be deprived of freedom because one has something to say.
To see the reality of the difference between appeal and due process, consider the case where the police have killed someone. Appeal then is impossible, and moot. But the person has nevertheless been denied due process in being deprived of life.
This structure as lens
The case of Kenneth Harding is structurally similar. As he steps off a Muni bus in San Francisco, Harding, a black man, is approached by cops who ask to see his transit receipt. He cannot produce one. He is accused of stealing a ride on Muni. The cops grab him in order to handcuff him. He turns and runs, and is shot and killed by the police.3
Grabbing a free ride on Muni is an infraction, and warrants only a citation to pay the fare, and a possible fine. A sign announces this on all Muni cars and buses. Instead of issuing a citation, which would have been proper procedure in their law enforcement role, these cops interrogate Harding (stage one), then decide to handcuff him (stage two), shifting his infraction to the level of disobedience to authority, that is, to their authority as a law unto themselves, for which the violence of handcuffing is their response. In thus reducing his civil status (with respect to them, since his only other act was a citable infraction), they place him in a double bind, between acceptance of the reduction of status and resistance (the common Jim Crow structure).
His only avenue of maintaining human status is refusal. When they try to handcuff him, he breaks free and runs. They shoot him in the back. He dies. The several conflicting stories that then ensued, as the police department sought to explain (aka “whitewash”) the incident, are too ridiculous in themselves (e.g. that he shot himself) and too self-contradictory to repeat here.
Indeed, they are examples of certain boilerplate explanations that appear often in police reports. According to the police, he had a gun. The same sources say Gary King had a gun, Alan Blueford had a gun, Eleanor Bumpurs had a … screwdriver??? when that 66-year-old arthritic black lady was shot to death by cops in New York City? Robert Warshaw has said, in a report filed in October, 2012: “In most cases, the investigator appears predisposed to the position that the shooting is justified, and then subtly or overtly sets out to prove that premise.” (Warshaw was a federal monitor investigating the Oakland Police Department.)
The homeless man in Albuquerque
On March 16, 2014, a homeless man named James Boyd was shot to death in Albuquerque, New Mexico, for camping illegally. In the video, we see him up on a hill, with several heavily armed cops in the foreground at the bottom of the hill, pointing their guns at him.4 He stands there, almost 100 feet away, talking to them. It is outside the city, in the adjoining desert, a landscape of rock and sand and a few scrubby plants. He is wearing disheveled clothes, and has bundles of belongings with him. He is one of the cast-offs from a society that has little regard for the welfare of human beings. And he has no one to stand up for him as a person but himself. He stands there talking in an almost conversational tone, across the distance between himself and cops who are pointing guns and yelling at him. He had apparently, up to this moment, refused their commands, probably thinking that his being up on this hill outside town was hurting no one. He was probably right. Being right sometimes doesn’t mean much.
Basically, he just wants to be left alone. For the police, this is not an option. They could have issued a citation. He is white, after all. Instead, they shift from law enforcement to a demand for obedience. It is not a shift to racial profiling because the man is white. But it is a shift that had been developed, honed, and practiced during many years of racial profiling. Now, they point their guns from afar as the manifestation of those years of practice.
In the video, we see him relent. He indicates that he will accede to the cops and come down off the hill. He turns around, bends over to pick up his bundles, and turns back toward the cops with his hands full, holding his bundles. At that moment, we hear a cop issue the command, “Do it.” And one of the other cops shoots a stun grenade at the man. It lands about 10 feet in front of him. He throws up his hands as if to say “What the hell…?” and his bundles go flying to the side. He bends over and picks something up, a knife perhaps. They have attacked and he is not going to go down without a fight. He stands there, hands raised, in defiance, as another police command rings out, and four shots are fired. The man spins and goes down. The cops approach carefully, not wanting to get too close to him, and yell, “drop the knife” over and over again. We see his body stiffen as he dies, while the cops continue to shout commands at him. They then shoot beanbag rounds at the body. The dog is released, and it pulls on his inert leg. With two cops pointing guns at him, a third comes around from the side and takes the knife out of this dead man’s hand. Even in death, he is the enemy, the one who has put this “society” into question. (“Society” is in quotes because it is beginning to bleed out from the slashes of these blue-uniformed blades.)
The structure is the same. He was caught doing something for which only a citation was warranted. But he talked back, and refused commands, and by insisting on his autonomy, became “a person of resistance,” against which authority had to “defend” itself. Thus, when he autonomously decided to come down from the hill, having previously refused their command, he was killed for his autonomy, though he was doing what they had wanted him to do. Or rather, because he did autonomously what they wanted him to do in obedience, they killed him for his autonomy. Not doing it when they commanded him to do it made him insurgent, which they destroyed through an act of counterinsurgency.
Herein lies the link to Jim Crow. The autonomy of authority, developed on the basis of an impunity that renders it a law unto itself, can live with no competing autonomy. It is the autonomy of the state destroying the autonomy of humans. This is the opposite of constitutionality, wherein “we, the people” are autonomous. The state can now handcuff us at will for speaking, with lethal power to deny our ability to say “no.”
The Albuquerque police department has ruled the killing justified. It is a law unto itself.
Nothing generated more explanatory versions than the killing of Gary King on Sept. 20, 2007.5 King was hanging out on Martin Luther King Way in Oakland, somewhere around 55th St., with some friends. Officer Gonzales was driving by, saw King on the other side of the street, made a U-turn, and accosted King where he was standing. According to witnesses, they tussled (the stories are multiple), King broke free and ran across the street. Gonzales had not said he was going to arrest him. Before King reaches the median, Gonzales had shot him twice in the back.
Gonzales claims he stopped because King was a “potential suspect” in a murder investigation already a month old. That is, he was suspected of being a suspect. He shot King because he saw King’s hand go to his belt. King was shot for holding his pants up? Gonzales then went into the street and handcuffed King as he lay there dying. Gonzales said he knew King had a gun. Witnesses at the scene said no, he didn’t. Ultimately, King’s family won a $1.5 million lawsuit, meaning that a court decided he actually never posed a threat to Gonzales.
What is clear is that King “fought back,” which is something a person does when unreasonably attacked. What King confronted was an attack and not a process of law enforcement. Gonzales had already shifted from law enforcement to profiling when he made his U-turn. He had only to establish a situation of disobedience to complete the process of criminalization, to transform King into a “suspect,” suspected of disobeying Gonzales.
King’s autonomy in defending himself was then squelched by police power, acting against this insurgency of self-defense, in order for its authority to resurrect its own autonomy against this challenge to it. None of this had anything to do with law, but only with state power. Jim Crow was always primarily the instrumentality of a form of white state power.
Jim Crow was actually a structure of membership in a white socius, a conglomeration of white-identified people around common enforcement of the hugely complex structure of segregation. It was a structure by which white-identified people related to each other, as in the murderous mobs they put together periodically, in which they paid their dues by inflicting suffering on black and brown people. Once one looks past the racism of individual whites to this membership-structure, one can see it has its own rules and procedures that substitute for Constitutional law whenever desired. Thus, the white socius under Jim Crow has many of the attributes of a state apparatus, coalescing and dissolving according to circumstances, and hiding behind the Constitutional state when not substituting itself for it. The fact that police are agents of the Constitutional state does not prevent them from acting in terms of the white supremacist state. That is what makes racial profiling work for the white socius.6
In all these cases, it is the police who choose to shift from law enforcement to the politics of disobedience, by profiling and then criminalizing their target through the creation of a situation inducing refusal. Profiling is already an act of suspicion, and the police themselves are the law that renders the profiled a crime in themselves, in which standing up for oneself is to “fight back,” to become insurgent. This is the contemporary mode of the Jim Crow generating machine.
In other words, these cases, in which there is an interaction between a person and a cop, in the course of which the person is criminalized and sometimes killed, have a structure that is peculiar to a certain political project. There are other cases that exemplify a different structure. There are those in which the cop simply shoots first, as an aggressor, without interaction between himself and the person attacked. The cases of Alan Blueford, Oscar Grant, Kenneth Chamberlain, Andy Lopez, etc. belong to this category.7
Another category is that in which police violence is transformed into justifiable defense through fragmentation of the incident. Cecily McMillan was convicted of a felony by those means. Because the judge excluded all testimony of the general police attack on the Occupy group, using gas and batons, her interaction with the cop had to be considered in a vacuum. Her elbow and the cop’s face were the only entities allowed in the court’s world of evidence. Thus, she was criminalized, and sentenced initially to seven years. Rodney King’s torturers were acquitted by that same means. The jury was shown the video of his being beaten, frame by frame, so that violence was stilled in each still photo and only the expression of inert individuals appeared, which could then be reinterpreted. The violence of the incident was then lost in the spaces between its moments.
The significance of this structure here described is that democracy, which means equality before the law, sovereignty of person (the ability to speak in one’s own voice), non-regimentation (absence of command or demand for obedience), and mutual respect (absence of demand for obeisance), has become equivalent to insurgency. In these incidents, for which the police are unquestionable in the moment, there is profiling (non-equality), outlawing of speech and angry tones of voice (non-sovereignty), and a legalized demand for obedience and obeisance. They mark a reduction of personhood as the prerogative of state sanctity, and its defense of its own self-arrogated impunity.
Gary King’s father later said:
Every black parent tells their kids how to deal with the Police Department. You have to do what they tell you. You never confront them, even when you’re right. That’s how you survive.
But let’s get this straight, that may be how a black man survives in the US today, but it is not how we survive as a society. It signifies a colonialist relationship between a white-supremacist political structure acting through its agents, the urban police, and the people – black and brown people first and foremost, but now also white people.
The inclusion of white people in the equation now reveals this reconstruction of Jim Crow to be in reality a colonialist structure between people and a state that is divorced from them through its adoption of impunity and non-accountability. No conversation or dialogue is possible. Authority’s attack will always appear gratuitous to its victim, while the police only follow a temporal ordering of stages that have nothing to do with the actual person they confront. It is across that separation that the most banal defense of one’s own self-respect becomes insurgency in the eyes of the state.
The fact that this structure can be discerned across the country signifies that, as a style and procedure, it has been universalized.
If democracy were to be instituted in this country, the following would need to be established first. Suspicion itself must cease to be sufficient cause to stop a person. A cop must see a person break the law, or have witnesses. If equality between people is to be established, as a prerequisite for democracy, the people must have the ability to question what the police are doing in the moment, and have their questions answered to their satisfaction within the purview of law, of fairness, and of justice. The police must be able to explain fully the reason for their actions in approaching or stopping a person. If the police cannot do this, their action must be taken as illegitimate, and stopped immediately. Questioning the police in the “line of duty” must be honored (aka decriminalized) if the process of regimentation of society implicit in the police demand for obedience is to be countermanded.
1. The question of making it illegal to video police making an arrest is highly contested. In 2010, three states had made it illegal -– Illinois, Massachusetts, and Maryland (www.dvafoto.com/2010/06/three-us-states-make-recording-police-activity-illegal/). Whether these laws will be overturned as they make their way through the courts is an open question. In many cases, the police use the rationale that video-ing constitutes eavesdropping or recording without consent – hence violation of the officer’s privacy. This is problematic since laws prohibiting eavesdropping have to do with private citizens in non-public situations, while the police are given power to demand obedience, and thus are not private citizens but agents of the state. On Apple’s new software for shutting down iPhones, http://deadlinelive.info/2014/05/12/apple-helps-cops-hide-police-brutality/.
2. See http://www.berkeleyside.com/2014/05/09/berkeley-police-stop-sparks-racial-controversy/ This video led to a couple of town hall meetings on the incident.
6. Steve Martinot, The Machinery of Whiteness (Philadelphia: Temple University Press, 2010), 152ff.
7. See Martinot, “Probing the Epidemic of Police Murders,” Socialism and Democracy, vol. 27, no. 1 (March 2013).