Imaginary War

by USD Black Law Students Association

Note from Joe Stewart, Editor-in-Chief: The October issue of Motions contained an article entitled Policing the Police, in which the author sought to analyze and offer opinions about the issue of police violence against black Americans. I have heard concerns from many readers among the law school community that the article was biased and certain opinions expressed were patently false. Members of the USD Black Law Students Association asked if they could submit a response, and I answered in the affirmative without hesitation. Motions is meant to be an inclusive forum of artistic, journalistic, and editorial expression created with the purpose of cultivating meaningful discourse. Unless expressly stated, no content reflects the opinions or beliefs of the editorial staff—Motions is merely the conduit of those students who feel compelled to speak through it.

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USD’s Black Law Student Association believes it necessary to address the assertions made in Policing the Police that we contend are both blatantly false and dangerous, while providing a broader context that will, hopefully, help shed light on this important issue.

An Imaginary War:

Policing the Police begins by alleging the existence of a “war on cops.” While the murder of any police officer is tragic and wrong, recent police killings in Dallas and Baton Rouge provide only anecdotal evidence supporting the existence of a war on police. The average number of police officers killed in ambush style attacks is at historic lows,[1] and the rate of police officers murdered while on duty has substantially declined decade after decade.[2] In fact, FBI data indicates that, in 2015, 41 officers were killed in felonious incidents, Contrastingly, that same year, police fatally shot over 900 civilians across the country, as identified by the Washington Post.[5] If there is a war, American civilians are losing.

Black Lives Matter:

Next, the article lays the blame for this “coordinated war on cops” squarely on the activist organization Black Lives Matter (BLM). Blaming the rhetoric of an activist group for the actions of cop-killers does nothing but create fear and division. To be clear, BLM does not seek out, plan, or encourage violence against police officers; to suggest otherwise is dangerous, offensive, and patently false. We should not impute the Dallas police gunman Micah Johnson’s crimes on BLM, much like black people do not condemn all white people for Dylann Roof’s massacre of a black church congregation in South Carolina. The article’s author correctly identifies that police officer killings are tragic and wrong, and yet he fails to extend that same sympathy to black American citizens wrongfully murdered by police officers. Rather than a desire for violence, the Black Lives Matter movement grew out of the black community’s frustration over the American justice system’s failure to hold officers and vigilantes accountable for the murders of black Americans. BLM seeks to address the systemic and structural bias against black Americans with a plan that includes community oversight, limitations on use of force, body cameras, and an end to for-profit police practices. Black Lives Matter does not mean that Black Lives Matter only, but rather, that Black Lives Matter—also. As the Chief Executive for AT&T Randall Stephenson recently articulated to his company employees, “When a parent says, ‘I love my son,’ you don’t say, ‘What about your daughter?’ When we walk or run for breast cancer funding, we don’t say, ‘what about prostate cancer?’ And when a person struggling with what’s been broadcast on our airways says, ‘black lives matter,’ we should not say ‘all lives matter’ to justify ignoring the real need for change.”

Alarmingly, the article argues that “BLM often encompasses the worst of all race baiters alongside their mostly decent and concerned ranks,” painting those who desire equality and the exposure of injustice within law enforcement as “race baiters.” Acknowledging disparate treatment does not make someone a race baiter, it shows an immense, admirable amount of courage to stand up for the rights of citizens unfairly targeted by the state. Police shot and killed Philando Castile in front of his girlfriend and her child because he lawfully exercised his Second Amendment rights. However, police tolerated a group of predominately white, open carry protestors displaying their AR-15 rifles inside of Chick-fil-A. The reasons for Philando Castile’s death are not “complex, to say the least;” a pattern of systemic racism within the police force is at the very root of that officer’s decision to shoot Philando Castile.

If the police in South Carolina could apprehend Dylann Roof, a man who massacred nine members of an African-American church congregation, without using any force, why did the police in Ohio need to shoot twelve-year-old Tamir Rice for playing with a toy gun? Police even gave Roof a free meal at Burger King after his arrest!

Ferguson Effect:

The article continues its baseless assaults on the BLM movement by citing a controversial theory known as the “Ferguson Effect.” The Ferguson Effect essentially states that violent crime increased after protests in Ferguson, Missouri, because “the heightened scrutiny of American law enforcement led [police] to hesitate more on the job.”[6] In other words, “inner cities” are in the midst of a crime wave because active resistance to alleged police misconduct deters law enforcement from doing its job. However, The Brennan Center for Justice repeatedly discredited this version of the Ferguson Effect because crime statistics suggest that local community conditions, rather than a national pandemic, likely created the spike in violent crime.[7] As University of Missouri-St. Louis criminologist Richard Rosenfeld concluded, “longstanding grievances and discontent with policing in American communities, activated by police violence,” can lead to “chronic discontent that erupts into violence.” Documenting police brutality is not creating lawlessness and violence in some cities; rather an erosion of law enforcement’s legitimacy leads to lawlessness, despair, and desperation. Even in Ferguson and St. Louis, Missouri,  violent crime rates begun rising long before the killing of Michael Brown (and the subsequent “riots”).[9] Simply put, outside of a few isolated incidents, very little evidence supports a finding that protests somehow induce a chilling effect on law enforcement.

Even if we accept the Ferguson Effect as true (which most criminologists have not), the article’s conclusion still makes little sense. The article seems to suggest that black Americans should sit on their hands despite this consistent, unending, relentlessly abusive behavior by police, lest our legitimate anger “fuel hateful rhetoric and violence against cops,” which, in turn, creates angry, bitter, racist cops. Black people, therefore, should not protest because it might hurt the cop’s feelings.

Presumably then, Martin Luther King, Jr. should have stopped the Civil Rights Movement because it caused racial distress and animosity throughout the nation; Cesar Chavez should not have organized farmworkers because it cut into profits and spurred hostility; and gay rights activists should have stopped pushing for marriage equality because the conservative right decided that marriage was between a man and a woman. Minority groups will not achieve equal rights without some sort of turmoil, and social change does come with costs, but we should not abandon our quest for equal recognition under the law simply because the path is difficult.

Police Bias:

In an effort to refute the concept of implicit bias in police shootings, the article cites a July 2016 study by Harvard researcher Roland Fryer[10]. Although the study found no statistically significant biases in police shootings of black people, it failed to examine what happens before the shootings occur. The study focused only on police use of force, completely neglecting the fact that police target the black community for stops at a substantially higher rate than other ethnic groups. The article attributes this racial profiling to “BLM rhetoric,” but how can it logically blame a movement that did not exist until 2014 for an issue as old as law enforcement itself? Moreover, the article fails to address the danger that people of color face from law enforcement and omits entirely the fact that police are five times more likely to kill unarmed black people than unarmed white people.[11]

The article also seeks to justify the substantially higher rate of police stops of black people by citing crime statistics that show the occurrence of higher rates of violence in black neighborhoods. As the argument goes, more crime means a greater police presence, a greater police presence means a higher likelihood of police stops, which can eventually lead to officer-involved shootings. However, this argument falls apart when applied to police policies such as stop and frisk and pretext stops. If violent crime ultimately drives “Terry stops” (stop and frisk), which accounted for millions of stops over the past 15 years,[12] how does one explain the high percentage of completely innocent people accosted by officers, relative to guilty ones?[13] Furthermore, if police concentrate on violent crime in black communities, why do police stop black people in white neighborhoods more frequently than whites?[14] Violent crime cannot justify police misconduct, and we should call these unconstitutional applications of police action what they are: racist.

Solutions:

Although the final section of the article focuses on “solutions,” the author makes no mention of the structural change needed within police departments. Instead, he seems to suggest black Americans be patient while police departments voluntarily adopt the reforms seen in Dallas. Frankly, it is absolutely abhorrent to tell grieving mothers, fathers, brothers, sisters, friends, and communities to sit on their hands while the very people who kill them make a few tweaks to solve the problem from within.

All of the author’s efforts to appear fair and balanced fall flat, with comments that one can only describe as disingenuous. For example, it states, “Just because there is a perception of excessive actions from law enforcement is reason enough for reform.” There is not just a perception of excessive actions, we have witnessed this behavior both in person and on our screens. We watched the life slowly drain from Eric Garner’s body as police choked him for selling cigarettes, saw an officer shoot Philando Castile because he legally carried a firearm, and we saw video of the patrol that gunned down twelve-year-old Tamir Rice. Black people do not merely perceive that society unfairly regards them as dangerous and threatening; it is a fact borne out of America’s history of policing and society at large.

If the author of this article truly wants to contemplate solutions, he should start with an introspective analysis of his own motives. For black people all over this country, this topic is more than just a political talking point; this is their life. Describing BLM as a “movement designed to score electoral points” diminishes the struggle against police violence, which, for black people across America, is a matter of life and death.

[1] Christopher Ingraham, Police Are Safer Under Obama Than They Have Been in Decades, The Washington Post (July 9, 2016) (https://www.washingtonpost.com/news/wonk/wp/2016/07/09/police-are-safer-under-obama-than-they-have-been-in-decades/).

[2] US Police Shootings: How Many Die Each Year?, BBC News (July 18, 2016)

(http://www.bbc.com/news/magazine-36826297).

[3] Dep’t of Just.,  Fed. Bureau of Investigation, 2015 Law Enforcement Officers Killed and Assaulted, U.S. Department of Justice, (https://ucr.fbi.gov/leoka/2015/officers-feloniously-killed/felonious_topic_page_-2015).

[4] Id.

[5] Fatal Force, Wash. Post (https://www.washingtonpost.com/graphics/national/police-shootings/).

[6] Matt Ford, Debunking the Ferguson Effect, The Atlantic, (Nov. 21, 2015) (http://www.theatlantic.com/politics/archive/2015/11/ferguson-effect/416931/)

[7] Id.

[8] Richard Rosenfeld, U.S. Dep’t of Just., Nat’l Inst. Justice, UNCJ 249895, Documenting and Explaining the 2015 Homicide Rise: Research Directions, at 2 (2016) (https://www.ncjrs.gov/pdffiles1/nij/249895.pdf).

[9] Abby Phillip, Lynh Bui, and Wesley Lowery, Around St. Louis, Bloodshed Rises in Year Since Michael Brown was Killed., The Washington Post (August 11, 2015). (https://www.washingtonpost.com/national/around-st-louis-bloodshed-rises-in-year-since-michael-brown-was-killed/2015/08/11/b0ea430c-405c-11e5-bfe3-ff1d8549bfd2_story.html).

[10] Roland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force, (Nat’l Bureau of Econ. Research, Working Paper No. 22399, (2016) (http://www.nber.org/papers/w22399).

[11] Wesley Lowery, Aren’t More White People Killed by Police? Yes, but No., The Washington Post (July 11, 2016). (https://www.washingtonpost.com/news/post-nation/wp/2016/07/11/arent-more-white-people-than-black-people-killed-by-police-yes-but-no/?utm_term=.72e244cafbe4).

[12] Stop and Frisk Data., New York Civil Liberties Union (http://www.nyclu.org/content/stop-and-frisk-data).

[13] Id.

[14]Stop and Frisk in Chicago., ACLU Illinois (March, 2015)

(http://www.aclu-il.org/wp-content/uploads/2015/03/ACLU_StopandFrisk_6.pdf).

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