August 19 was the two-year anniversary of the shooting death of Kajieme Powell, an unarmed black man who robbed a convenience store, and whose shooting at the hands of responding police was clearly documented on video from a bystander’s cellphone. Powell’s killing was within a few miles and weeks of Mike Brown’s, on August 9, and the news was buried in the coverage of the protests surrounding Brown’s death. In a way, however, Powell’s death presented a more troubling case, as cell phone footage clearly showed to any reasonable observer that the shooting was unjustified. As I noted at the time, the officers who arrived on the scene decided to escalate with firearms before even stopping, and even their brief interaction with Powell should have convinced them that his cognitive processes weren’t normal (the video makes this abundantly clear). It took them about 15 seconds from the moment they pulled up on the scene to open fire. They didn’t bother to first talk to the shopkeeper who made the call, or to the eyewitnesses who had video footage of the entire incident, and their defense that Powell lunged at them was risible. Of course, after a year, the officers weren’t charged with anything.
After the apparent lone-wolf shooting of several police officers in Dallas, "Blue Lives Matter" has emerged as a slogan. Fair enough: the officers, who were protecting and interacting peacefully with a Black Lives Matter protest, were apparently murdered in retaliation for police shootings elsewhere. What does it mean to say that “lives matter,” though? I want to push the point here that when we’re talking about “lives,” we’re talking about more than the biological process of living. After all, most of us can imagine some sort of tipping point - perhaps being in a persistent vegetative state - where we would conclude that our own life was no longer worth living: that it no longer “mattered.” To say that “lives matter” is to say something more than the obvious truth that police officers want to get home to their families in the evening. It’s to say that their lives as police officers should be livable, supported lives. And if you frame the question that way, I think it is very clear that the state apparatus has failed blue lives. Not with the relentless intensity or in the same way that White Supremacy has failed black lives (I will say more about this in a subsequent post). But a failure nonetheless, and a failure that needs to be remarked upon, because it is related to the failure to make black lives matter.
Let me begin with one of those inconvenient truths that white people need to acknowledge more often: most all of us - including those of us who commit ourselves to anti-racist causes - harbor racist intuitions and sentiments. Don’t believe me? Go take the implicit bias test and come back when you’re done failing it. A lot of the work in fighting racism is in recognizing and fighting subconscious beliefs that we have absorbed from the environment. Americans of all races prefer white people over people of color. How could they not, in an environment saturated by the symbols and signs and political dog whistles of white supremacy?
This is important, because policing doesn’t exist in a vacuum. Quite aside from the staggering cultural and climate problems in the police departments around St. Louis, Baltimore and other places, implicit biases and other cognitive framings don’t just affect what we see, but they in substantial part constitute it (this was the primary argument of my earlier post). This observation dates back at least to the medieval Islamic philosopher Ibn Sina (“Avicenna”), who noted that part of the cognitive apparatus assigns meaning to what it sees: when a sheep sees a wolf, it sees danger. This territory is also well-covered in phenomenology, so I assume the modern version of Avicenna’s insight is clear enough. The culture of modern policing in the U.S. has a similar effect, and when many police officers of all races see a young, black man, they see a threat. In some cases this is conscious racism. But in most, I would be willing to argue, it is not. It’s just that, like the rest of us, police officers are part of a social environment.
When you frame the topic this way, it becomes immediately apparent that the context of policing in the U.S. does absolutely nothing to help officers deal with implicit biases. Instead, it actively fosters them. The problem is not just stereotyping and profiling, although it is definitely partly that. It is also that police departments are often heavily armed with military surplus gear, gear which encourages the belief that one is at war against a civilian population. As Latour reminds us, “man+gun” is not the same actor as “man who has a gun;” putting the two together makes a composite actor that does not reduce to its components. That is, the nature of both the man and the gun are transformed by the man possessing the gun. Another problem is that the carceral system disenfranchises black men, often for trivial reasons, condemning them to lives where meaningful employment is nearly impossible. It is also that the child welfare system, often acting on stereotypes about black parenting, routinely breaks up black families when it would never do the same to a white family. Also, research repeatedly shows that employers are more likely to hire someone with a “white” sounding name than a “black” one, even when the cv’s are made identical for the experiment.
In other words, the problem is structural; the list above is just a collection of a few of the ways white supremacy functions. In that context, blaming individual officers is cathartic, and perhaps even necessary - but it won’t solve the problem, because the system forces individual officers, placed in potential life-or-death situations, to go to heroic personal lengths to overcome not just whatever biases they might bring to their work, but the biases that their work environment actively encourages them to have. This is an unreasonable demand to make of anyone. That leads to a second point, which is that the problems go all the way to the top – to the Supreme Court. Any serious advocate of Blue Lives Matter needs to pay attention here, because both police officers and those they encounter are the street have been hung out to dry. More than once.
First, the Supreme Court has said that an officer’s personal impressions of danger at the time an incident occurs are the standard that discussions of lethal police force must follow; per Justice Rhenquist: force “must be judged from the perspective of a reasonable officer on the scene, rather than with 20/20 vision of hindsight.” This means that no objective standard can be applied or taught to officers, and no police officer can be trained to even run through a checklist in his head before getting out his gun. As long as the officer can plausibly claim to have felt at risk, the inquiry is over. Implicit bias cannot be contested, and officers have no tools with which to fight it. This is a profound disservice to our police, because it gives them no enforceable guidance as to how to approach the use of force. It also is a green light for structural racism, implicit biases, and all the other things that contribute to the perception of young, black men as somehow inherently dangerous or violent.
It is worse than that, however. According to Rhenquist, inquiry into reasonableness must never examine the officer’s “underlying intent or motivation.” The Supreme Court made that particular problem worse this term. Mark David Stern of Slate explains:
“Just last term, the Supreme Court seemed willing to ratify this … by granting qualified immunity to an officer who shot a fleeing suspect to death under [a] pretty shaky pretext. The decision, Mullenix v. Luna, centered around Texas state trooper Chadrin Mullenix, who was part of an operation meant to catch fugitive Israel Leija Jr., who was fleeing the police in a high-speed chase. Leija was allegedly armed and intoxicated; Mullenix was positioned on an overpass in view of spike strips designed to stop his vehicle. His supervisor told him not to use his weapon—but Mullenix did anyway, shooting Leija in the head, shoulders, and neck, and killing him. (“How’s that for proactive?” Mullenix later quipped to his supervisor.)”
By an 8-1 vote, the Court ruled in favor of the officer. And yet the officer not only defied direct orders, he stood from a position of personal safety, and he knew that the suspect’s car was about to come to a very abrupt halt. The lone dissent, Justice Sotomayor, reminded the Court that the standard encourages “a ‘shoot first, think later’ approach to policing.” Sotomayor is so obviously right that it is painful to have to say it: the standard for use of lethal force is that there is no standard. But also, 8 members of the Supreme Court not only said that a black life didn’t matter, they devalued a blue life, by refusing to hold an officer to a simple standard - not just reasonable discretion in decisions about lethal force, but also the more basic standard of following explicit orders.
I would like to be able to conclude the post now, but it turns out that things are even worse. In another case this term, Utah v. Strieff, an officer accosted a man leaving a suspected drug house, demanded his ID, ran it through the computer, and discovered an outstanding warrant for a traffic violation. On that basis, the officer arrested and searched Strieff, and found drugs. Strieff argued that the search was unconstitutional, since he had been stopped for no reason. The Supreme Court, on a 5-3 decision, disagreed: the existing warrant meant that the unlawful, investigatory stop wasn’t such a big deal. Any police misconduct wasn’t “flagrant.” Justice Sotomayor wrote a blistering dissent, which has been quoted a lot of times, but it bears repeating. Here is most of her first paragraph:
“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”
Sotomayor emphasizes that the officer did not suspect Strieff had done anything wrong, and that the exclusionary rule prohibits including evidence that had been illegally obtained from being used against someone in court. As she emphasizes:
“The officer in this case discovered Strieff’s drugs by exploiting his own illegal conduct. The officer did not ask Strieff to volunteer his name only to find out, days later, that Strieff had a warrant against him. The officer illegally stopped Strieff and immediately ran a warrant check. The officer’s discovery of a warrant was not some intervening surprise that he could not have anticipated. Utah lists over 180,000 misdemeanor warrants in its database, and at the time of the arrest, Salt Lake County had a “backlog of outstanding warrants” so large that it faced the “potential for civil liability.”
Throughout, Sotomayor makes the case for actual, objective standards of evidence, as when she notes that the “Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better” (7). In the absence of such an objective standard, the rule of law is difficult to maintain. Warrants are cheap and issued for trivial reasons: she cites the DOJ report noting that of 21,000 residents of Ferguson, Missouri, over 16,000 had outstanding warrants.
Importantly, the problem is structural, and individual officers are not really the problem:
“I do not doubt that most officers act in “good faith” and do not set out to break the law. That does not mean these stops are “isolated instance[s] of negligence,” however. Many are the product of institutionalized training procedures. The New York City Police Department long trained officers to, in the words of a District Judge, “stop and question first, develop reasonable suspicion later.” The Utah Supreme Court described as “‘routine procedure’ or ‘common practice’ ” the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion. In the related context of traffic stops, one widely followed police manual instructs officers looking for drugs to “run at least a warrants check on all drivers you stop. Statistically, narcotics offenders are . . . more likely to fail to appear on simple citations, such as traffic or trespass violations, leading to the issuance of bench warrants. Discovery of an outstanding warrant gives you cause for an immediate custodial arrest and search of the suspect.” (internal citations omitted, emphasis mine)
In other words, officers are trained to break the law, and then trained that they will suffer no negative consequences for doing so. Such training shows profound disrespect for blue lives because it puts those officers in potentially dangerous situations with no meaningful guidance as to what proper behavior is. It also trains officers to view themselves as sovereign over the civilians they are supposed to “serve and protect” by encouraging them to engage in arbitrary behaviors that maximize the number of arrests they make, and it does so in a context saturated by the legacies of white supremacy. What could go wrong?
In writing on the U.S. policy of “indefinite detention” of those picked up in the U.S. “global war on terror,” Judith Butler proposes that the criminal behavior of guards at Abu Ghraib and other detention facilities represented the irruption of “sovereign” rule (in the Schmittian sense) over biopower or juridical power (in the Foucauldian sense). But this sovereign behavior was carved out of the biopolitical space by the subtraction of rules and structure that would enforce a culture of respect for the law (for readers familiar with Agamben, this is very similar to how he describes a “camp”). What happened as a result? Widespread abuse of detainees. What actions were taken? Thanks to the availability of a lot of photos, the torture of detainees at Abu Ghraib was hard to deny, and seemed (to most) fairly obviously to occur at a systemic level, which suggested high-level toleration (at least) of the practices. But the inquiry into it decided that it would be better to find a few bad apples. Lynndie England was the most famous case; she was prosecuted, and eventually served time. Ten other soldiers were charged and convicted, and the commanding officer in charge of Iraqi prisons was demoted. These soldiers did the wrong thing - but somehow the system forgot to question the climate that could have created these abuses. That is a system that showed utter contempt not just for the lives of the detainees held (mostly unjustly), but also for the lives of the soldiers whose job it was to maintain the system.
In the case of police, Sotomayor makes a similar point: the complete lack of standards subjects everyone to what amounts to a state of exception. Speaking in her own voice, and from “experience,” she emphasizes how degrading stops, frisks and arrests can be. She points out that these degrading experiences are disproportionately visited on people of color. She concludes:
“By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged”
In other words, it represents the irruption of sovereign power in the space carved out of the biopolitical space of police by the subtraction of rules and standards to guide the very police whose job it is to tend to the safety of the biopolitical state.
Kajieme Powell didn’t stand a chance; he lived in a society where his life didn’t matter. Part of how that happened is that the officers who shot him worked in a system that does very little to help police officers who want to do the right thing. For all the lip service paid to the importance of police, their lives apparently don’t matter much, either. Meanwhile, police violence continues unabated. A little over a month ago, in Miami, an officer shot Charles Kinsey, a (black) mental health professional who was trying to handle a (white) patient with a toy gun. Kinsey, however, was lucky: he was shot in the leg, and so he was alive to ask the officer why he shot him. The officer answered that he didn’t know.