What good is a constitution if you can’t use it? What good is it if it tells you how to govern and you say: “we can’t govern that way.” What good is it if it proclaims democracy and you use it to dominate people? When the cops enact their brutality toward black people, are they making themselves a “role model”? Is that the source of their constitutionality?
In the previous article about “Police Use of Force,” the following was established:
§ When the public calls for minimum use of force by the police, the police not only resist, but increase their violence against the people.
§ The police have the (court-given) right to demand obedience from the people.
§ There are three institutions in which obedience can be demand: the military (enlistment), the prison (conviction), and the corporate bureaucracy (employment). Civil society is not one.
§ To be forced to obey a command in civil society is to be placed within a military-type institution without consent.
§ To be forced to obey the pedestrian commands of anyone without consent is a violation of the 5th Amendment. It is a deprivation of liberty without due process of law.
§ “Civilians” are people who have neither enlisted nor consented to membership in a military institution, nor to its obedience structure. They belong to “civil society.”
§ To use force against a civilian to make them obey is a violation of the Constitution.
§ To demand pedestrian obedience from a civilian (not under arrest) is to change their civil status. They become part of a military organization without consent.
§ The police have been given the power to determine the legitimacy (and relevance) of their pedestrian commands.
§ To adopt a “commanding officer” stance toward a civilian is an act of violence against them.
§ To change a person’s civil status without consent or due process is an act of state violence.
§ For “militarized” command-giving police, there is no “zero-level” force to which to reduce their violence.
§ To use force against a non-compliant civilian is a violation of their human rights.
§ To punish pedestrian non-compliance is already excessive force, in excess of militarization.
§ Police violence, when accompanied by racial profiling, is an act of white supremacy.
§ The courts have ruled that a person must obey a “lawful order,” but nowhere have the courts or legislature defined what juridically constitutes a lawful order in a pedestrian context. The “legal” concept of a “lawful order” is thus provided to the police as a “wildcard” to use for social control.
Obedience and militarization
What does all this mean?
The militarization of interactions between the police and civilians (persons of non-military status) produces a disparity of rights. It is a disparity produced by the absoluteness by which the police can expect obedience to their commands, and in terms of which they can punish non-compliance. Both police and civilians allegedly have the same rights granted them by the Constitution, since both groups belong to constitutional society. However, the police have a right that civilians do not have, the right to deny or curtail the rights of civilians. Their right to do that through an expectation of obedience translates into the power to do so.
We are not speaking of the level of obedience to social agreements or understandings of social solidarity or organizational esprit de corps. This absoluteness legitimizes responding to the least disobedience (such as a person walking or running away) with lethal force. The list of people shot in the back by police is long.
This disparity in rights generates a cultural difference between the police and civilians. It is not just a difference in social standing or occupational necessity, it is a difference of power. As a power relation, it engenders a difference in ethics, a vast disparity in what each culture considers reasonable, and a discrepancy in the social logic by which events are comprehended and interpreted. As a cultural difference, it represents divergent consciousness toward the world. Example: a cop hits a man with a baton; the cop can then charge the man with “assaulting an officer.”
As a power relation, this cultural difference produces a hierarchy between the police and the people. The police not only have rights that civilians do not have. The hierarchy of those rights translates in forms of social control. People are no longer simply “people” governed by the same constitutionality. They become “subjects” with abrogated civil rights. In other words, the rights to which civilians could lay claim have become contingent rights. The Constitution may present “life” and “liberty” as human rights, but the police power to kill in the name of obedience (“I felt threatened”) subordinates them to police power.
An inherent corollary to hierarchical control is unquestionability. To question why a cop has stopped a person, and to even indicate the absence of “probable cause,” is to risk restraint or beating – especially if one is a person of color. Yet questioning is only a form of petitioning for redress. The right to petition for redress of grievance is abridged. The police decide when and where a person cannot make such petition. To bar questioning is to insulate the police themselves from such grievance. Thus, the perspective and reasoning articulated in any such petition is squelched by those it is about. Nothing in the 1st Amendment restricts when and where such a petition can be submitted. To bar questioning, to refuse a civil response, or to get violent against questioners is to commit a criminal violation of the Constitution.
On the other hand, the power bestowed by the militarized demand for obedience includes the power to criminalize whoever the police wish. The cop has simply to give a command that the person will find humiliating or disrespectful. For the person to refuse out of self-respect is then to commit a crime. To thus criminalize self-respect is to substitute criminalization for the law. It renders questions of law enforcement secondary and irrelevant, insofar as they are replaced by social regimentation. Regimentation, the degree of control based upon routine social violence, implements the real disparity in social logic between society and police.
The right to due process
There is yet another right that the police routinely deny the people; the right to due process of law. This right protects individuals from the power imbalance between civilians and institutions such as corporations, governments, and police departments. For that reason, it is generally withheld, ignored, and thrown into the dark corners of judicial processes.
Due process of law means that before any attempt to deprive an individual of life or liberty, a hearing must be held in which both parties, depriver and defendant, have equal voice, and can present their case (for and against deprivation) before a third party. This third party, which must be mutually acceptable to those in contention, would judge the propriety or legitimacy of the proposed deprivation. And that deprivation could proceed only if the neutral third party accepted its reasonableness.
It is essential that due process precede deprivation. The temporal or sequential aspect is critical. If the deprivation occurs first, the person is only left with appeal, which is not due process. To grasp the enormity of withholding due process, think of how many people would be alive today if that constitutional guarantee had been implemented. Appeal is not a judicial process available to a person who has been shot dead. But with due process, a cop couldn’t even handcuff a person without some legal discussion saying it was okay, in which the person facing restraint had an equal voice. For cases of police approaches to people on the street, community members on the block could provide the personnel to hear both sides and judge the necessity and relevance of what the cop proposed to do. A traditional court proceeding would not be necessary. And indeed, the Constitution does not specify what kind of venue would serve for facilitating due process and an equal voice. On the other hand, what the police have shown through their impunity is that ignoring the right to due process leads to a form of police state. It renders the police a governing body beyond regulation.
Ultimately, the police dispensing with due process, which negates the human right of having an equal say in one’s own destiny, affects a structural disconnect between the people and the law. It is this disconnect that is expressed in police refusal to curb their brutality even in the face of massive demonstrations against it. If social outrage on the streets is necessary for justice and accountability to occur, and for law enforcement to obey the law, then there is no law. There is only administration and executive discretion.
The racialization of obedience
In sum, under militarized obedience, the police have the ability to criminalize at will, to substitute themselves for the law itself, to deny or abrogate a person’s human rights, and to approach and command persons on the basis of whim alone (whose legal name is “suspicion”). These powers divide society into a hierarchy of cultures. Insofar as these powers get expressed through profiling, which implies that the police pick their targets on the basis of appearance rather than deed, they impose a form of racialization on society.
To pick out people on the street based on appearance is to make a subjective selection. It is not a selection that redirects people to one prison camp or another, such as during the 1930s. But it is a selection nevertheless, out on the street. It amounts to a decision process that produces a new “color” line, one which forms between those who will be treated gently and with respect, and those who face being criminalized. It divides people into those whose humanity will be respected and those for whom it won’t. This ability to construct a new color line is another special right that the police have constituted for themselves.
As a color line, it is built person by person, selecting who to harass, who to treat arbitrarily, and finally who to injure or kill in a self-justifying manner. It doesn’t matter that not all police engage in such activity. The fact that it occurs at all is sufficiently atrocious to be unignorable – ultimately by all other cops (who become complicit in ignoring it). The trauma of police impunity is and has been disruptive of local community at the hands of cultural hierarchy. It takes control of the destiny of the people selected, and changes their future, their hopes, the integrity of their community, etc.
As a color line, the police become the immediate practice of racism. Their construction of this color line provides the role model for individual racism. It gives white people a choice. They can choose which side of the color line they will stand with, whether that of militarization or that of human rights. They can signal their attitude toward police militarization by how willingly they obey or not. But mostly, they choose to categorize police actions, however brutal, as simply “law enforcement.” The support they offer through white obedience is an acceptance of the white racialized identity that police racializing processes construct for them.
For most people of color, the choice they face is what kind of statistic to become. What the color line does is conflate individual racism with institutional racism. When the white cop knelt on George Floyd’s neck, it represented a clear intention to kill him. You could see that in the cop’s face. The cop knew the other three on his team would not stop him. Was he therefore acting as an institutional agent or an individual? In reality, he embodied the fact that individual racism and institutional (systemic) racism are inseparable. He demonstrated that the ability of white people to be racist is always in relation to the institutional. The institutional is what guarantees that a white race-identified person can get away with it (that is, not be criminalized for it).
Because police racism exists, race itself is made to exist. It is constructed out of the single “material resource” that has always been its foundation, namely, violence. Official social violence. The fact that this occurs through the construction of a police color line and a selection process that is part and parcel of legitimized militarization (“commanding officer” impunity) indicates that this process of racialization is itself a government project. That is what it has always been, from the first kidnaping of people who got loaded into boats to the profiling of people on the street who got thrown behind iron doors by the signing of plea bargains.
The color line repeats the original creation of “people of color.” It doesn’t set them opposite a “colorless people.” It creates the “white racialized identity” that then sees the others “of color” through the haze of hierarchy. “Race” is something that one group of people does to others. It is a verb: “to racialize.”
There are those who understand that the white mind, white consciousness, is anti-democratic because it relies on exclusion rather than inclusion. And that extends to the granting of militarized power for social control.