"Qualified Immunity" masks much deeper problems
Americans have recently been introduced to a new legal phrase “qualified immunity” in the wake of the string of police murders, abuses, and subsequent protests and riots. Many returned not only furrowed brows at the phrase, but some level of surprise that it means police are usually not held accountable for violating the law, including many clear abuses. For the first time in a long time, a phrase and troublesome policy generally only discussed in minority corners has been vaulted into mainstream discourse, with several people now calling to end it. The problem is, this demon is legion. It has many tentacles stretching into every sphere of government, the criminal justice system, and much of life. “Ending” it will require radical changes across the board or else we will see some kind of piecemeal, lip-service fix which does little to nothing.
Congressman Justin Amash introduced a bill boldly calling to end the policy. Only one Republican cosponsored it, but the Democrat majority carried a police reform bill that incorporates softer measures. It will probably be stalled in the Senate even at that and faces a promised veto from Trump. To show you how touchy of an issue this is, the Democrat version is not only way softer than Amash’s, but Pelosi would not allow Amash even the chance to amend it. In other words, even Democrats tread lightly when it comes to really messing with government agent (incl. police) immunity.
(This stands to reason, as Democrats love big government power every bit as much as Republicans, RINOs, and other statists do. I also believe that Democrats ultimately covet that same level of immunity because it is also applied, with much less publicity, to social workers, child and family services agents, and other agents of the left-liberal desired, jack-booted nanny-state. Ruining “qualified immunity” for cops now will mean the protection is gone when cops are replaced or supplemented by an army of other agents in the future, or to some extent now.)
But ending qualified immunity and all of its attendant evils ought to be a bipartisan effort. The fact that it is not is a testimony to how both Republicans and Democrats, almost universally, are in love with power and an abundance of unaccountable government power to enforce their agendas. Blaming one side or the other will get you nowhere and end us all in a form of government slavery. When the only substantial proposal on this issue comes from a man like Amash, who is basically a pure libertarian under the Republican brand, and the guy can get virtually no support for such a measure, it should tell you a lot about the state of our country.
More than that, it should tell you a ton about our understanding of our own nation’s history. If people truly believed in civil rights and “liberty and justice for all,” they would put qualified immunity, nearly all forms of sovereign-agent immunity (yes there are more!), as well as all the legal “catch-alls,” loop holes, technicalities, and vagaries by which the same results are obtained by government actors. The few ideologically principled voices out there who do get this are by far a minority. But it is worth noting that they are a very highly respected minority in their own spheres. In one recent debate on qualified immunity, one participant noted that ending it was something that both Justices Clarence Thomas and Sonya Sotomayor agreed upon. If those two can agree upon anything, it must be something of real substance!
But this is an issue that has by far a wide and strong mainstream support. The principled ideas of liberty (where they overlap in both left and right traditions) may flank it, but only at the fringes and with weak forces. There is a mass bulk of history, culture, and police practice in place (under many guises) over many decades, centuries even, that have led us where we are today.
This raises another facet of the same issue: some have already pointed out that you cannot have police in anywhere near the form we have today without also having some form qualified immunity. The idea of armed, sworn, warranted agents of the state using discretion in the use of force or arrest, etc., means inevitably mistakes and occasional error at the very least. The lust for power inherent in individuals, and exacerbated by institutions, concurrently means that the very nature of such police power by definition creates a window for abuse. So, we have a system in which discretion requires a window for acting above the law, also for making mistakes, and yet will also use that window to hide its own abuses (performed out of revenge, feelings of superiority, or whatever). This facet requires its own article.
Understanding the sordid background
It has already been widely noted that “qualified immunity” is a fairly recent innovation. The current form came to fruition beginning in 1967, but gained perhaps its most widely criticized expansion in the 1982 case, Harlow v. Fitzgerald. The 1967 decision Pierson v. Ray gave the basic idea that the “policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.” This carved out a niche for cops to have immunity in some case. The courts have done little except expand the protections and favor available to police ever since. The 1982 case added the idea that the specific abuse alleged, even if it is actually an abuse, must have already been a “clearly established” abuse, or else the cop could reasonably not have known it was an abuse that must be avoided. This greatly leaned the balance in favor of police, and many argue it greatly opens the door to future abuses.
The “clearly established” standard also creates a catch-22 for those alleging abuses. It means that unless a particular type of abuse (in nearly identical detail to what is alleged in any particular case) has already been documented, then the cops’ qualified immunity defense will succeed. But the more such cases are allowed to succeed like this, the fewer newly-defined types of abuses will become recognized by the court as actual “clearly established” abuses. This creates a vicious cycle in which cops can abuse victims in a variety of ways, but any substantial uniqueness to the case will help the abusers achieve immunity for it. Victims of many forms of brutality, false arrest, false witness, seizure of property, and more will have no remedy into perpetuity.
To begin with, few people know much about this legal history at all. Most do not realize that current police law had a very messy evolution from a by gone era fraught with many problems, including deep racism and social caste issues and legalized abuses of power. These developments began at the state and local levels and grew into national controversies at multiple stages along the way.
Like social security, public education, or many other areas, police power is one area where the past few generations have grown up immersed in the status quo as if it had always been that way. We all can think of a more romanticized time in which Mayberry and Sheriff Andy Taylor were the standard; but that was highly romanticized to begin with, especially for white people. North Carolina was hardly so romantic for blacks under Jim Crow in the 50s and 60s. But the show doesn’t show much of that reality. Secondly, it was in black and white—meaning, it was already ancient history when I was a kid. Yet we cling to this false, dated romanticized notion of the good ol’ town criminal justice system that was more likely to help you build your lemonade stand and be your first customer than ticket your children for having one. Or of course, much worse.
Many people get the feeling that things used to be much better, much freer. But this is not necessarily the case. Things used to be more decentralized for sure, but decentralization also means a lack of accountability. This is a great thing when people are moral and liberty can reign. But when racism and deep cultural prejudices and fears reign, the lust to destroy your enemies through police power reigns. A lack of accountability in such a time is a very dangerous thing indeed, especially for the marginalized. It was precisely because state and local governments were in such a position that problems occurred.
Even among those who do recite some of the history of something like “qualified immunity,” few get into the real nature of what was going on. For example, when we read of a Supreme Court case deciding this or that rule for qualified immunity or some other police power, we are led to see the incident that brought about that case as an isolated or rare incident. “Gee, we have never seen a case like this before. We’ve never thought to address this before. Here’s a good (especially odd and rare) case that will need to be decided by the higher ups at the Supreme Court.” That is not how it works.
Few people stop to realize that false arrests, arbitrary raids, brutality, and other instances like the one that led to any such Supreme Court case were happening all the time, every day, in every state, city, county, and locale through out the nation. Yes, it is true that the Supreme Court created “qualified immunity,” but it did not do so completely ex nihilo. The equivalent of qualified immunity was already being practiced by government agents at the state level. Or, more commonly, cops simply acted with immunity and the idea of accountability was just assumed to be a non-issue.
It is also under the color of such laws and court standards where the common misperception about “systemic racism” occurs. People mistake this to mean “racism written directly into the laws.” This is not the case. We did have such racism at one point; but that is not what the phrase refers to. “Systemic” or “Institutional” does not mean “official written policy,” but rather refers to any of several assumed cultural practices. You can have largely unobjectionable laws, and yet those laws create loopholes that allow bad actors to abuse the system with impunity. When you do have bad laws, even if they are still not explicitly racist, the issue is only worse.
When you have a legal system which rewards power and places burdens on the weaker and vulnerable, then you have a system which simultaneously creates space for bad actors who are committed to racial injustices. They simply learn how to work within the already compromised system—again, even though it is not explicitly or officially racist.
Also, good luck proving it if you happen to be a victim of it (racism or not). The difficulty in proving and prosecuting it, let alone winning, let alone funding the lawyers for a few years to last through the various inevitable appeals to the bitter end, usually mean defeat for individuals.
History shows many police and government power issues developed in this way.
Slave history provides an obvious early example. It is likely that the earliest American origins of “police” abuses began with the laws that protected anyone attempting to capture a runaway or absentee slave. As early as 1669, Virginia law allowed for such a slave to be “casually” (meaning, “accidentally”) killed if he or she merely resisted capture. This law was expanded and reapplied in 1691 and beyond. The letter of such laws would of course not protect brutality or purposeful killings; but it did not need to. Even explicitly forbidding such acts, however, was not enough to prevent bad actors from abusing the legal space and its protections. Such an actor need only say he feared for his life, that the slave resisted or tried to flee, etc., and the law would then provide immunity. Unless a group of whites witnessed any foul play and were willing to testify against him (blacks could not testify), the law rendered the bad actor completely immune.
The same laws applied very soon afterward in neighboring South Carolina with an added twist that whites were required to help apprehend and return suspected absentee slaves. As I wrote in Problem of Slavery: “In cases of runaways who resisted, ‘any white person’ could ‘beat, maim or assault,’ and if necessary kill that slave with impunity. To prevent gatherings of blacks in Charleston on sabbath days and holidays, constables were ordered to create roving police forces, and were granted the power to ‘enter into any house’ without a warrant” (54).
During the intense rivalrous antebellum period, the Compromise of 1850 expanded such powers through the federal government onto everyone. It created the first federal police force, the agents of which could conscript anyone into slave-catching service on the spot.
1954 San Francisco
We could write another dissertation on all the questionable origins and power of our institutions through all the intervening years. In the interest of space here I want to skip ahead to the 1950s and 60s to some rather revealing and interesting permutations of these systemic abuses.
One recent incident I read sticks out. Risa Goluboff’s masterful Vagrant Nation discusses how San Francisco in the 1950s was a hub of the type of police and power abuse encounters that would make for Civil Rights cases. A typical example of systemic abuse occurs with the Contra Costa County Sheriff performing targeted raids on predominantly black neighborhoods. In 1954, for example, the sheriff raided the mostly-black North Richmond neighborhood in an effort to fight prostitution, gambling, and drugs. Over 100 officers blockaded streets and entered every restaurant, bar, or other establishment. They commanded all patrons to put their hands up and proceeded to search every individual on the spot—without warrants, cause, or anything. If they cleared a person, they were given a pass to exit the blockade and go home. If an individual objected, they were threatened with violence and arrest. When one disabled veteran stated he could not physically raise his hands over his head, the officer retorted, “If you act like an ass, we’ll treat you like an ass.” Around 400 people were unlawfully searched. No drugs, prostitutes, or gambling were found. Around 70 people were arrested anyway. Forty-three were charged for “vagrancy.”[1]
As Goluboff makes painstakingly (and painfully) clear, “vagrancy” laws were used as a broad “catch all” (before the “qualified immunity” era) that allowed police tremendous room to carry out many sorts of abuses. In this case, the abuses were of civil rights. One could easily argue that the abuse in and of itself was simply unconstitutional, but not necessarily racist. Yet we see it carried out, and covered by law, a clearly racist agenda. In this case, the whole project and department was in on it. But it could easily have been a smaller team or select individuals within a department acting this way (still today).
Up through the 50s and 60s, cops in many states used vagrancy laws and similar statutes consciously as “catch all” laws to arrest those for whom they could not prove anything, but nevertheless wanted an excuse to arrest anyway. As early as 1907, one California cop had to answer a judge as to why he arrested two people for an alleged assault he had not witnessed and for which he had no warrant. He testified, “I says: ‘Well, the only thing we can do—we didn’t see it—we will go and vag them’”—“vag” meaning arrest them on vagrancy. It was not just an isolated incident. A 1935 report by the New York Law Revision Commission stated: “The underlying purpose [of the vagrancy laws] is to relieve the police of the necessity of proving that criminals have committed or are planning on committing specific crimes.”[2]
The main point in all of this is to see how certain structures allow for racism and/or police abuses to be perpetuated under the guise of generic police action, or even conceivably a guise of officially not being racist. Even long before we had an official doctrine of “qualified immunity,” we had police carrying out abuses with immunity in various ways. The laws themselves and the nature of police power by definition mean that abuses will happen and immunity from abuses will follow in one form or another. Then, the purposeful but covert abuse of immunity will probably follow, and usually does. Again, this is often associated with racism; but it is performed in many areas and instances that are not. Either way, merely peeling away surface “qualified immunity” protections will hardly be enough.
A legal revolution that perhaps really wasn’t, and an upside-down political world
Listening to Goluboff’s lecture on the criminal procedure “revolution” of the 60s tipped me off to one of the more interesting tidbits in all of this which tends to confirm much of what I have been trying to say for a long time. Many conservatives today would criticize the Warren Court for decisions that helped “criminals” (an epithet almost always given to the accused, regardless of conviction or not). It was this national atmosphere, after all, that led to the Nixon and Reagan mantra of the late 60s and early 70s, “tough on crime.” Warren’s court decisions on criminal justice did effectively hold the unaccountable and often-misbehaving states to stricter standards of the federal Bill of Rights. In short, he “incorporated” the Constitution onto the states. But this was not always strictly the case. Sometimes, the decisions were more like codifications of police practices already outstanding, or at least compromises toward such things.
Forgive me here if I shift a bit by introducing another controversial police power—shifting from “qualified immunity” alone to include another novelty, “reasonable suspicion.” The same Warren Court decided early precedents on qualified immunity, like Pierson mentioned above. It also decided one of the most controversial cases that set police precedent still essentially binding today, Terry v. Ohio (1968). This case established that a cop is not violating your Fourth Amendment rights against unreasonable searches or seizures when he arrests you without probable cause. Probable cause had been the Constitutional standard forever, but now suddenly the Court decided that a lower standard would be acceptable: “reasonable suspicion.” This was defined as more than just a hunch but well less than probable cause.
That decision was a huge win for the “tough on crime” crowd, but why was the supposedly liberal, activist Warren Court so willing to bend so far for that crowd as to invent a completely new standard in its favor? It was massively political. Some have suggested that Warren had chipped away so much at police power already that this decision was sort of a compromise to appease the tough-on-crime factions. But it is more than this. Again, the state and local governments were already doing this every day, whenever they wished. It would have meant a drastic rollback of police presence, practices, and power had the true standard of the Constitution been strictly imposed upon all of them. There would have been massive strikes, walk outs, revolts from police—maybe even a new civil war!—were their local powers so drastically curtailed overnight.
There is of course much to say about all of this, but by far one of the most interesting things to come to light in it is the counterintuitive nature of the legal arguments on each side. We today may be too quick to assume we would find liberal, progressive arguments (bend the Constitution to suit our purposes!) on the one side and conservative originalism or strict constructionism on the other (our Founders meant what they said!); but this is nothing like what was taking place.
The conglomerate of racist and conservative forces (including anti-communist) did not want the Constitutional standard imposed on States at all, mainly because it would invalidate the tyrannical laws and police practices their states were employing to suppress blacks, and others, in the name of fighting crime, vagrancy, and more. Much like the slave states of old, and the Jim Crow powers, they wanted States to have the power to ignore the Constitutional rights of some citizens and impose whatever laws they themselves found desirable (note: this was occurring not just in the South, but in many other states including California, Illinois, Pennsylvania, Ohio, and more). The liberals, in this case anyway, were the ones appealing to the deep tradition of English and American common law, the Constitution, and strict precedents, which meant liberty and justice for all.
It surprised me to read such amazing arguments and references in the Amicus Brief for Terry filed by . . . the NAACP. Yes, that “Marxist”-founded outfit that so many conservatives despise today, was defending the U.S. Constitution with a vigor and class I have rarely witnessed from any Conservative or even libertarian. (The brief is online; it is about 70 pages and you can read it here. I would encourage you to do so.) For example, they are quite forward with it:
It is relatively clear that the Classical Arrest-Search Model was and is the common law of England, which has never permitted detention for investigation nor on less than probable cause. The same model has also been invariably assumed by this Court to describe the constitutional law of the Fourth Amendment. This is more than historical happenstance. For the root notion of “probable cause” which is mainstay of the model is not simply a long cherished Anglo-American symbol of individual liberty. It is, in view of the practical realities of criminal administration, an inevitable evolutionary product of our system’s use of courts to confine police power within reasonable bounds consistent with the conscience of a free people. (19–20)
Some excerpts will ring familiar to modern ears (like not much has changed since 1968):
The evidence is weighty and uncontradicted that stop and frisk power [on “reasonable suspicion”] is employed by the police most frequently against the inhabitants of our inner cities, racial minorities and the underprivileged. This is no historical accident or passing circumstance. The essence of stop and frisk doctrine is the sanctioning of judicially uncontrolled and uncontrollable discretion by law enforcement officers. History, and not in this century alone, has taught that such discretion comes inevitably to be used as an instrument of oppression of the unpopular. (3–4)
Now, here is an important point to grasp for today. There was nothing inherently racist about the states’ “stop and frisk” laws. They were certainly not textually or officially racist. Yet they were a vehicle that sustained systemic racism, as unaccountable cops could choose to enforce them discriminately against people of color, or impose them more forcefully or strictly or harshly at will against minorities, and yet do so with impunity.
The more foundational questions, however, involved the basic standards of the Constitution to guarantee human rights and limit police powers. The brief quotes the Presidential Commission on Civil Rights Report from 1947:
Where lawless police forces exist, their activities may impair the civil rights of any citizen. In one place the brunt of illegal police activity may fall on suspected vagrants, in another on union organizers, and in another on unpopular racial and religious minorities, such as Negroes, Mexicans, or Jehovah’s Witnesses. But wherever unfettered police lawlessness exists, civil rights may be vulnerable to the prejudices of the region or of dominant local groups, and to the caprice of individual policemen. Unpopular, weak, or defenseless groups are most apt to suffer. (4, footnote 5)
It quotes a judicial dissent from 1928, appealing to the Founding Fathers:
The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are found in material things. They sought to protect Americans in their beliefs, their thought, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. (14, footnote 21)
It quoted a 1959 case which appealed to the basic Fourth Amendment standard tied to the classic case of John Otis (1761):
The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of ‘probable cause’ before a magistrate was required. (15) (Henry v. United States, 361 U. S. 98, 100 (1959)).
In other words, to diminish the long-held standard of “probable cause” would be to abdicate governmental responsibility and overthrow the separation of powers! (Note: it was after that 1761 case that a young John Adams would declare that the seeds of American Independence were born right there in that courtroom, with the speech of John Otis, Jr.)
Further,
History tells us why. The general warrants and writs of assistance against which the Fourth Amendment was principally aimed were vicious precisely because they “permitted the widest discretion to petty officials.” “Armed with their roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they pleased to suspect.” (22) (Stanford v. Texas, 379 U. S. 476, 483 (1965), quoting 2 MAY’S CONSTITUTIONAL HISTORY OF ENGLAND 246 (Amer. ed. 1864).
Likewise,
“The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing, and history shows that the police acting on their own cannot be trusted.” (23) (McDonald v. United States, 335 U.S. 451, 455-456 (1948).)
They recognized the Constitution existed precisely to limit such abuses at the street level and for the people who need it most:
The Fifth Amendment Privilege also forbids government to treat suspicion as guilt and to throw upon the citizen the obligation to exculpate or explain himself to a government officer. Miranda v. Arizona, 384 U. S. 436 (1966). It denies government power to employ coercive force of any sort (be it brief or extended physical restraint or other means of compulsion) to secure the cooperation of the citizen in pursuing law enforcement efforts that may secure his own criminal conviction. Ibid. Lessons to which the First Amendment and the Due Process Clauses of the Fifth and Fourteenth respond have taught us the impermissibility of making law enforcement officers the unconstrained rulers of the streets. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). And our especial national history has given us the Equal Protection Clause as a bulwark both against arbitrary and discriminatory abuses of our citizens by government officials, and against the dangerous generality of governmental authorizations rife with the potential for such abuses. (24–25)
Tinkering with the standards of police power was therefore a recipe for perpetuating an existing disaster:
The “probable cause” standard, as opposed to the lower “reasonable suspicion,” “avoids the dangerous mysticism of police professional, and professionally motivated, intuition—what Mr. Justice Jackson recognized as the mobilized mentality of “the officer engaged in the often competitive enterprise of ferreting out crime.” . . .
Closely inspected, we believe, both the “balancing” theory of Fourth Amendment rights and the Stop-Frisk Model that is built upon it show themselves to be mere fine, scholastic pretexts for oppression. The “minor interference with personal liberty” that they sanction is a major interference; the protections which they promise are unreal illusions; the “balance” scale which they purport to employ is invariably tipped by the police commissioner’s thumb; and their consequence is nothing more or less than a police dictatorship of the streets. (29, 34)
The “Police Dictatorship” in Practice
The NAACP brief goes on to describe how the enhanced police power goes hand in hand with systemic racism:
Let us examine first the nature of the “minor” invasion of liberty involved. Proponents of the “stop” like to portray it as though it consisted at worst of a police “Hey, there.” Several points should be obvious about this “Hey, there.”
(1) “Hey, there” itself, when said by a policeman, is a significant intrusion, except perhaps to those fortunate citizens whose sole image of the police is a vague memory of the friendly face of the school crossing guard. Such citizens are not very often stopped. “Hey, there” to the man likely to be stopped—the man on the street in a “bad” neighborhood, the man in the ghetto—is a challenge, an act of dominion by the Fuzz, a thinly veiled threat of force.
(2) “Hey, there” may or may not be thought unduly intrusive—once. But the man likely to be stopped is not likely to be stopped once. He is likely to be stopped again and again, day in day out, and for the same reasons. The following comment of a “lower income Negro,” which the National Crime commission’s Task Force on Police thought worthy of publication, is a perfectly representative picture of ghetto life-and resultant ghetto attitudes:
“When they stop everybody, they say, well, they haven’t seen you around, you know, they want to get to know your name, and all this. I can see them stopping you one time, but the same police stopping you every other day, and asking you the same old question.”
(3) “Hey, there” looks better on paper than it sounds on the streets. (We put aside the consideration that it is almost invariably “Hey, there, boy” in the ghetto.61 ) “Field interrogation procedure” is thus described (at its mildest) in an instructional article for police:
“ ... Meeting head-on. Let the subject get up even with you or slightly beyond you. Then turn toward the subject facing his _side. Your hand should either be holding onto the subject’s arm at the elbow or in a ready position so that you will be able to spin him forward and away from you in a defensive move. This is the position of interrogation. You should make habit of interrogating from this position. Your greatest hazard is the unknown.”
(4) The method of police approach just described, the power of the policeman to make “Hey there” sound like a threat, and the inevitable citizen response together make the “stop” power a de facto arrest power. The pattern can be observed daily on any ghetto street. The policeman on “aggressive patrol” (as it is coming to be known in police circles) makes his approach; the citizen, touched on the elbow or startled by the voice at his side and the policeman with his hands up, raises an arm slightly in an instinctive defensive gesture; the policeman is now free to arrest him for assaulting an officer, obstructing an officer, etc. Every policeman on the beat knows that the power to make an enforced stop is the power to escalate the episode into a technical “assault” and to make an arrest for the assault. The ghetto resident knows it too--although he is seldom clever and dispassionate enough to avoid the trick.
(5) In any event, the authority which the proponents of “stop” seek to give the police is not the authority to say “Hey, there.” It is the authority to detain the citizen who does not stop when “Hey, there” is said. It is the power to order him to a stand-still, and to lay hands on him if he moves. It is the power, in the American Law Institute’s draft Model Code, to use all force short of deadly force to stop him.
[Of course, now we know they were wrong on this point. They won’t stop “short of deadly force.” They use deadly force, too.]
Assuming that it does, the “stop” power ranges from a hand on the sleeve to a tackle, a patrol car careening up on the sidewalk, a bullet in the citizen’s leg. It must be thus, we are informed, because “it would be frustrating and humiliating to the officer to grant him an authority to order persons to stop, and then ask him to stand by while his order is flouted.” (35–38)
It is bad enough to say something like “history has proven them right”; but this is also the reality of what had already been taking place throughout the country for decades, through slavery, through Black Codes, through separate but equal, through Jim Crow, and even now immediately after the Civil Rights Act! Taking the two together—looking forward and looking backward—it is also shameful to have to say that so little has changed. It is even worse to realize that many powers created specially to deprive slaves of Constitutional Rights are now leveraged against everyone, though blacks still disproportionately.
The brief includes instructions from actual police manuals for field interrogations. The contents align with the systemic problems of racism and police powers already described:
“The patrolman in Westville, and probably in most communities, has come to identify the black man with danger....” Little wonder that “field interrogations are sometimes used in a way which discriminates against minority groups, the poor, and the juvenile.”
This is not an isolated or ephemeral abuse, nor one that courts can control under the rubric of “reasonable suspicion.” Can any court say that the policeman is not reasonably suspicious of the group of young men lounging on the ghetto corner? Of the man on parole for narcotics violations who consorts with another? Of the man walking at night with two companions who have records for robbery? Of the interracial couple in the neighborhood frequented by prostitutes? A police authority on field interrogation gives policemen this advice respecting the “selection of subjects”:
“A. Be suspicious. This is a healthy police attitude, but it should be controlled and not too obvious. [Sic.]
“B. Look for the unusual.
1. Persons who do not ‘belong’ where they are observed.
2. Automobiles which do not ‘look right.’
3. Businesses opened at odd hours, or not according to routine or custom.
“C. Subjects who should be subjected to field interrogations.
1. Suspicious persons known to the officer from previous arrests, field interrogations, and observations….
4. Any person observed in the immediate vicinity of a crime very recently committed or reported as ‘in progress.’
5. Known trouble-makers near large gatherings.
6. Persons who attempt to avoid or evade the officer.
7. Exaggerated unconcern over contact with the officer.
8. Visibly ‘rattled’ when near the policeman.
9. Unescorted women or young girls in public places, particularly at night in such places as cafes, bars, bus and train depots, or street corners….
20. Many others. How about your own personal experiences!”
Is a judge to say that these bases of suspicion are unreasonable? How, in any meaningful way, is he to review a police “stop” based on any of them?
The answer to this question is evident from the reports. The courts have not in fact imposed any limitations or restrictions upon the stop and frisk power once that power is granted. They have not done so because they could not do so-because the essence of the doctrine of stop and frisk on less than probable cause is judicial abdication to police judgment. . . .
As we shall see, the major failing of the cases is that “reasonable suspicion” has proved to be a broad, all-purpose rubber stamp for validating police intrusions. (45–47)
The NAACP brief could speak with authority not only on the common law and Constitutional standards, the police practice, and the dangerous training standards of police, but also on the predictable backlash from a harassed and oppressed populace. The lamentable, unacceptable, and yet predictable results were as easy to understand then as they should be now: protests and riots.
It is no accident that many major riots suffered since 1964 have been sparked by a public confrontation between the police and Negroes. Regardless of the underlying factors which set the stage for riot or increase its likelihood, it is plain that police-community encounters have triggered outbreaks of group hostility:
In Cincinnati a Negro man protesting the death sentence of another Negro is arrested. In Boston, police advance with truncheons on women sitting-in at the welfare department. In Tampa, a cop shoots a Negro burglary suspect in the back after he had refused to halt. Each incident triggered violence. Stores were burned and looted, people injured. Rioting ended in Boston not because the police had dispersed crowds, but because the cops went away.
Or as the New York Times put it:
“Even before Newark the script was familiar. Some minor incident begins it all, often the arrest of a Negro by a policeman.” (62)
We do not suggest, we emphasize lest we be misunderstood, that police conduct in any way “causes” riot or is responsible for it. Would it were so; the wrong could then be more readily righted. We will not repeat the “appallingly familiar, statistical litany” of social ills which are responsible. We only observe that the frustration and bitterness of poverty, unemployment, slum housing, ignorance and segregation easily fixes on the police; that in return, and often for quite good reasons, the police view the Negro with fear; and—how apt the word here—suspicion. The bloody turmoils which we have experienced are ignited and intensified by this mutual hostility.
Concluding musings
The sad reality is, again, that so little has changed. We hear many today decrying the fact blacks feel oppressed and riot when major incidents occur and they remain unheard. They are today forced to put up a defense of themselves, and it is quite ironic that the defense sounds no different then than it does today. Yet then, there were still direct, actual racist laws on the books. They are gone today. So why do the same conditions, police practices, and results and defenses persist?
Obviously, there must be some underlying problem. Back then, whites accused blacks of being lazy, shiftless, delinquents and criminals. Today, fewer people are as bold to say the same things openly, but those who speak openly about it say the same things, even if in softer words. No person who understand humanity or the religious doctrines of the imago dei will be able to remain content with such prejudicial condemnations.
Yet, while the direct texts of a few laws and practices have been eliminated or curtailed, the one thing that truly has never changed is the nature and scope of police power in general. Unchanged are the ability to work within whatever system it finds itself to leverage power and the dishonest, but unable-to-be-proven abuse of that power. Likewise, unchanged is some form of immunity in which the bad actors remain protected by the power and for the power. It is precisely in this system that abuses of minorities, and the weaker and vulnerable of all forms, occurs with impunity.
The longer such things remain unchanged fundamentally, they longer the simmer and seethe and grow into a boil. The nearer we are to greater, larger riots. The nearer we are to attempts at revolution by bad actors on one side; and the nearer we are to the counterrevolution of power protecting itself on the other. Both are seeds of Satan. Both are predictable from a people who live in fear rather than love of neighbor. Without love and sacrificial reform, riots will grow and recur, and police power will grow and oppress to match.
I have looked long and can see only few ways out, and they will be difficult to come by. One thing I know must take place is for more conservatives and Christians to be deeply honest about our history and what truly needs to take place. “Jesus is the answer,” and, “The gospel is the only answer to racism,” type answers are true, but used as mere platitudes, even from those who most sincerely mean them. We need gospel practice. We need cruciform action. We need wisdom in actual deeds. We cannot afford to use pious words as walls of defense for our self-righteousness selves. Our hesitation to confess a wrongdoing or accept any responsibility to give in going forward will be the seeds of our own slavery and tyranny. We must get deeply honest, ready to take up our cross and sacrifice ourselves for his love. The fact that we have so little detailed understanding of the history that got us where we are, especially among those most vocal in opposition to police reform and racial healing, tells me we need powerful prayer for our brethren; we need a miracle. There is so little understanding. I wonder if there is enough time; or if God is even going to be using professing conservative Christians much in the progress that is to come.
Whatever the case, “qualified immunity” is laughable by his standard, and will one day be laughable by that of all humanity, too. The questions will be, how long will it take to realize it, and who will be in on the realization?
Notes:
[1] See Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (Oxford University Press, 2016), 44.
[2] Both instances quoted in Goluboff, 56–57.