18 U.S. Code § 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
In other words, abuse of police power is right up there in the Federal crime book with treason and first-degree murder. Even attempted murder can merit death. The reason its wording is so extreme is that if some guy walks into a bar, pulls out a gun and blows some other guy’s head off, that’s certainly a bad thing. But when such a crime is committed by a cop, flashing his badge to deter anyone from intervening lest they go to prison for trying to save the victim’s life, such a crime undermines the entire fabric of society. (More later.)
Better-known is conspiracy against rights.
18 U.S. Code § 241
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured —
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Up to death …
Note that the penalty for conspiracy against rights is identical to the penalty for crimes under color of law. Both say, “… may be sentenced to death.”
Abuses of authority (under color of law) and abuses of rights are even recognized to some degree, but are treated separately, downplayed as local phenomena and then dismissed. Tut tut, shame on you, the authorities mutter as each little flare-up burns out in due course. If the two were treated as a whole, rather than separated, it would be politically explosive, it would implicate the justice SYSTEM, rather than at best local justice DEPARTMENTS. Because the fact is that the Justice Department itself is guilty of crime under cover of law when it lets itself get bogged down in quibbles about whether Brown or Garner were killed because they were Black, thus a matter of subjectivity, while ignoring the aspect of murder under color of law, which is a legal slam-dunk. Why the outrageous blind spot? Because murder, rape, assault and brutality under color of law are so widespread, so endemic to our system that, if taken seriously, they might well grind the country to a halt.
A central tenet of radical theory from Marx onward is “once ideas are grasped by the masses, these ideas turn into a material force which changes society and changes the world.”
Liberals and radicals alike have offered many criticisms to the people fighting back in Ferguson. How does burning down convenience stores advance the struggle? Why aren’t they registering to vote? Couldn’t their public relations be more sophisticated? Nicer? Such questions are grist for many a thoughtful discussion. But the 500-pound gorilla here is that Ferguson has irreparably broken the façade of business-as-usual. Now, even Bob Dylan’s Mr. Jones has noticed that “something is happening here,” even if there is debate over “what it is.” Ferguson is getting things grasped.
“Which side are you on?”
That is the really relevant question. When 50,000 protestors took to the streets blocking bridges and highways in the middle of Christmas shopping season, there was an acceptance of its legitimacy. I imagine myself as one of the inconvenienced shoppers, damn, I’ll be late for dinner, how long is this going to last, I can’t just join in because my family is waiting, snap, snarl, growl. And I get home, pour myself a drink or three, and think, damn, they did it! Okay, I understand. And I even had a walk-on part. I can’t say they shouldn’t have done it. Maybe the word “legitimate” doesn’t come to mind. But it was “okay.”
Then there’s the 1% and their army. They were certainly rocked by the “Hand up don’t shoot” protests. Now they are counter-attacking. Their response is to assert the legitimacy of police murdering young Blacks and the legitimacy (even sanctity) of the justice system as it conspires with the police and tainted witnesses to decline to prosecute. They can’t quite say that murder is okay. Rather, it gets legitimized in the form of an Orwellian deluge of “we love our cops, “our cops are all heroes,” “they are keeping us safe.” As Patrolmen’s Benevolent Association (PBA) head Pat Lynch might smirk to his cronies behind closed doors, “a dead cop is a terrible thing to waste.”
In plain sight …
What we are seeing is nothing less than a public shredding of the Social Contract.
Remember Social Contract? Something mentioned in one of those boring history courses we were forced to take to make us good citizens. From the Oxford Dictionary:
an implicit agreement among the members of a society to cooperate for social benefits, for example by sacrificing some individual freedom for state protection … as a means of explaining the origin of government and the obligations of subjects.
In the 50’s and 60’s, Black people in the South were demanding a full role in American society and civil rights activists were beaten and murdered by the local authorities. The federal government took upon itself (under great pressure, to be sure) the responsibility to protect its southern citizens from abuse by local authority. The National Guard was mobilized and the FBI was sent in. Flash forward to today. The abuse under color of law is blatant, worse than ever before given this media-saturated society, compounded by the conspiracy of the Ferguson and Staten Island prosecutors and grand juries. The federal government does not act. If it did try to act, we can rest assured that it would throw the case. The only excuse for “letting the law take its course” is to delay and thus defuse our resistance.
The social contract is burned now at the federal level. But as above stated, the contract also defines the “obligations of subjects.” Time to get classical again:
“Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it … when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
That’s from 1776, and it still reads pretty good.
Former Mayor Bloomberg has boasted, “I have my own army in the NYPD, which is the seventh biggest army in the world.” So watch out.
The liberal call to order was more gently expressed by New York’s current Mayor De Blasio, who said he had told his son, “be very careful when [you] have …an encounter with a police officer, if a police officer stops you, do everything he tells you to do. Don’t move suddenly. Don’t reach for your cellphone.”
De Blasio’s telling this enraged Pat Lynch, whose sterner public stance was, “We have to teach our children, our sons and our daughters, no matter what they look like, to respect New York City police officers, teach them to comply with New York City police officers even if they think it’s unjust.” Obedience is not enough. We must have respect as well.
It’s not working
As New York falls under siege, the unrest is spreading. Countercurrent News reports from Beavercreek, Ohio (pop. 45,000):
“On Christmas Eve, our reporters, reporters with Alternative Media Syndicate, as well as those with the Greene County Herald and local NBC 2 News were all threatened by police for simply recording them illegally assaulting citizens, including Elementary School age children, mothers with strollers attempting to go shopping, and a retired University of Dayton Law Professor … Clearly all of the protesters today were not armed. In fact, only about half were. But that appeared to be enough to keep the police from trying the antics of the past two protests, including running into a woman at the same Walmart, in a pedestrian crosswalk, with police SUV cruiser #149 and then driving away without stopping.
At the risk of seeming callous, cops have been killed before, even “executed.” Last June, the silence was deafening when two officers of the Las Vegas PD were killed by a couple of white right-wing patriots with ties to Cliven Bundy’s anti-government movement. But there hasn’t been a response like this since the Chicago Haymarket bombing of 1886 killed 7 cops. Why this massively orchestrated mourning? (New York mourns! The nation mourns! The world mourns!) We all know that cops go crazy when one of their own is killed. But this is straight-out political. When 23,000 cops converge on a funeral in Queens, that is a political demonstration, even as they snarl at any attempt to politicize it from the left. The extent of the mourning is directly proportional to the strength of the movement that has been building over the latest string of murders by police.
Now people are being arrested for putting the words “pigs” and “wings” in the same sentence. Would the Red Bull ad with the winged pig be an act of terrorism? If a prosecutor says it is, then it is. If you can’t afford a lawyer, it is. But in fact, the police are threatened, as sometimes happens to occupying armies.
The relationship between police and the public is one of the most critical that a society deals with, and in any society the element of brute force is always part of the mix. However else you might feel about cops, you must grant that it is a difficult, dangerous job. It does entail dark alleys and dimly-lit bars and often being surrounded and outnumbered by angry people who are not marked by any uniform. But too much reliance on force breeds reaction and escalation. Too little, and the cop is at risk. So the cop’s intimidation power is all-too-often a tool of the trade.
The New York Post reports a street cop saying, “I’m not writing any summonses. Do you think I’m going to stand there so someone can shoot me or hit me in the head with an ax?” It is tempting to snicker at the theatrics, but I’m not so sure that the cop in question isn’t genuinely afraid. Pat Lynch is not going to swoop down if this cop finds himself outnumbered in some hallway.
As Machiavelli once advised the Prince, it is better to be loved than feared, but if you are not loved, then you had better be feared. There has been an unhappy and unhealthy but stable relationship between police and community. Now that relationship is unraveling. The demonstrations do unleash cop hatred, or more accurately, make possible its expression. Cops feeling threatened but not reinforced up the ante with armored personnel carriers and machine guns. They are quicker to open fire. And that provokes reactions, and …
I think the process is ultimately irreversible. More and more people live in desperate poverty, and the 1% are rolling in unprecedented wealth. The structure of corporate capitalism guarantees that these tensions will be exacerbated.
Crisis of Legitimacy
Back in 1975, a Trilateral Commission’s report by Michel Crozier, Samuel P. Huntington, and Joji Watanuki, wrote about the “Crisis of Democracy: On the Governability of Democracies” which warned (the 1%):
“Al Smith once remarked that ‘the only cure for the evils of democracy is more democracy.’ Our analysis suggests that applying that cure at the present time could well be adding fuel to the flames. Instead, some of the problems of the governance in the United States today stem from an excess of democracy … Needed instead is a greater degree of moderation in democracy.”
The very title raises the fundamental question of “governability,” a word not lightly tossed around in those days. The problem the Trilateralists were trying to address was the delicate balance between force and legitimacy. Capitalism flourishes at its best when it has the consent of the governed, even if that consent is grudging. Resort to brute force is not a sign of strength, but a sign of weakness. It is costly, unwieldy and destructive, even if deemed necessary by the 1%. Wall Street paid a heavy price, as did the NYPD, for crushing Occupy. The tactical sophistication of the current movement owes a lot to those days. Gave the resistance a much shorter learning curve. It also opens up the possibility of use of force by the 99%.
Even when brute force is successful, its use signals a loss of legitimacy. The level of political dialogue on the left, and for my purposes, within the Green Party has been very constrained, borne down by the seeming immutability of today’s corporate capitalism. But loss of legitimacy means, among other things, that the old rules are breaking down. It is quite scary. Anyone not scared is a fool. But whether or not they break down is part of a larger social breakdown, and whether or not it happens is not our choice. The question we face is that of what is to be done, GIVEN that the breakdown is happening. As long as the current mode of corporate capitalism was perceived as eternal, it was hard to think seriously outside that box. But now that it is breaking down, whether we want it to or not, the question becomes what do we replace it with. And that question, that dialogue is on the table whether we want it on the table or not.
See how they run …
One fringe benefit for the left is that the liberals are being smoked out, running for cover, loving their White House sessions with Obama and gushing over how much they love cops. The Times runs a piece about the protest movement being at a crossroads, whether to keep demonstrating now that we have dead cops and all these calls to reflect and mourn. But interestingly enough, all the voices urging moderation were those of elected officials. Not a single protest leader. Hard work being a hack these days.
“The movement must double down …”
But let us end on a cheerful note. Georgia Green Party Co-chair Bruce Dixon, managing editor of Black Agenda Report, and BAR’s Executive Editor Glen Ford have been writing some of the best stuff around in the past few month on the political crisis within the Black political establishment. Dixon here offers us a list of transitional demands, i.e., demands that are both far-reaching, but also conceivably attainable under the current system:
The movement has to get beyond the failed liberal authoritarian responses of “more black officers,” “more community policing” and “more training for cops.” Nobody spends more on training than big city departments like Baltimore, Los Angeles, New York and Chicago. Training hasn’t stopped the killing and police terror, and neither has hiring more black and brown cops. As for community policing, the shorts-wearing Officer Friendly on a bicycle is just a radio call away from the SWAT team in the amphibious mine-resistant armored vehicle.
Here are some examples of a far reaching, but sensible set capable of inspiring masses, keeping them in the street, and taking steam away from liberal authoritarians:
- The movement must double down on the demand to de-militarize local police, to cease the flow of military grade hardware to local cops, and ban the use of local funds to refit and refurbish military hardware for local police use.
- End asset forfeiture, and ban police use of seized assets. Right now cops can grab money, vehicles, and property of all kinds without proof a crime has been committed. Lots of people outside the current movement are already angry about this, and it will give them a tie to what’s happening in the streets.
- End all federal funding to local cops based on their volume of low level drug arrests.
- Decriminalize drug use, homelessness, mental illness and sex work. Ending these kinds of interactions with civilians removes heavily armed police from most of the very situations which end in daily civilian deaths. Of course decriminalizing homelessness, mental illness and sex work will require far-reaching changes in laws and judicial practices. Nobody said rolling back the police and prison state was easy. But it is absolutely necessary.
- End profiling and overpolicing in minority communities, whether it goes by the name “stop and frisk”, “broken windows” or the latest shibboleth, “predictive policing.” This too is tough to accomplish, since cops and prosecutors have taught themselves, and have taught a large number of voters as well that aggressive overpolicing of minority communities is all that holds society as they know it back from the brink of the abyss. They can learn new lessons, or get new jobs.
- Force all police departments to record and report data on police violence inflicted on civilians, and make this data transparently available to the public. Since the Clinton administration federal law has required the Department of Justice to gather stats on police violence against civilians, but local departments are under no obligation to keep them, so the requirement has been meaningless. Local cop shops will fiercely resist this, and authoritarian Democrats who want our votes but don’t want change will resist it with them, calling it “unrealistic.” Screw them. It’s real, and its right, or politically speaking, left.”
Happy New Year!
See also NYPD calls it Wartime