Twisting the Law

Photograph by Nathaniel St. Clair

The trial of Derek Chauvin is getting started. The press writes articles searching for ways to say something unimportant about it. On Sunday, 3/28, an article in the SF Chronicle wonders if a “snap decision” defense would work, or would the defense be better off with a “trying to do his job well” approach. Six paragraphs go by that way, without ever mentioning that Floyd had already been arrested and was in handcuffs when killed. He was killed in custody. After a decade of massive demonstrations against police brutality, they continue to kill people in custody in the open. How blind does one have to be to suggest one should trust the police? Wouldn’t that be the height of irrationality?

Yet that is actually only a distant tip of a huge iceberg. When we study the incidents of police operations (in which killing is too often a result) over the past few decades, we find several levels of irrationality, for which law enforcement remains extraneous. From a civil society perspective, they go so far beyond what could be considered training that, as behavioral traits, they could only be considered cultural. Here’s a brief window into what that means.

*On March 12, 2017, in an Atlanta suburb, Demetrius Hollins was stopped by two Gwinette County cops while driving. Hollins is black, a 21 year old university student. He questioned being stopped, and one cop started yelling. Hollins reached for his phone, and the cop yelled that there will be no phone calls. “Nobody is going to know about this.” He ordered Hollins out of the car. When Hollins stepped out with his hands up, the cop threw him to the ground, and began beating him. After being handcuffed, and while still lying on the ground, the second cop came over and kicked him in the face.

*Rebecca Musarra was stopped by a cop for speeding on October 16, 2015 near Trenton, NJ. She refused to answer any of his questions, so he pulled open her door and dragged her from her car, throwing her against the car and handcuffing her – for having said nothing. As this cop arrested her, he read her her Miranda rights, among which are “you have the right to remain silent.” (SFC, 8/25/17, pA5)

*On June 15, 2015, in Austin TX, Breaion King, a black school teacher, was arrested after a traffic stop. There had been an exchange of words. She was dragged from her car and thrown to the ground. She was then handcuffed, arrested, and charged with “resisting arrest.”

*On July 10, 2015, Sandra Bland was stopped for an alleged traffic violation in Waller County, TX (she had changed lanes to get out of the way of a police car that had come up behind her). The cop ordered her out of her car, and threatened to arrest her. She objected, and he got violent with her, throwing her to the ground. She was recorded as saying, “you just threw me to the ground for no reason; why did you do that?” After handcuffing her, he arrested her and charged her with “resisting arrest.” Sandra Bland later died in custody, in her prison cell. The police claimed she committed suicide. How does suicide match up with someone who asks sensible questions? And her family won a $1.9 million wrongful death judgment.

To suggest that these incidents represent “an irrationality” in policing is to take a perspective on them. We watch from the side. A motorist is stopped by the police. There is an exchange of words, and the motorist is manhandled violently. Yet arrest is not for a criminal act, but for resisting arrest. Hence, there is a noticeable purposelessness to the violence committed. It appears to be violence for its own sake. What is striking is its consistency. For no evident reason, a traffic stop shifts to a deprivation of the driver’s liberty. Each reveals an irreality, a disconnect from an extant situation.

These incidents happen in different parts of the country, yet tend to look alike. Their character diverges markedly from peace-keeping, and from civility, let alone from law. And their commonality suggests a common source. In effect, they present a form of institutional irrationality, something no longer located in either the individual cop nor his training manuals. What inhabits the individual cop, however, in each case, is a desire to fulfill something other than law enforcement.

Indeed, in each case, there is an irrational use of the law itself. A motorist is arrested for “resisting arrest.” To charge a person with “resisting arrest” implies that there had been a prior cause and warrant for arrest in the first place, the execution of which warrant had been resisted. The underlying assumption is that such prior cause must have been a criminal act, and not a mere traffic violation. If there had been no antecedent crime, what warrant for arrest was the motorist resisting? To say they were arrested for “resisting arrest” (the only crime extant) means “resisting arrest” was the crime they committed for which they were then subsequently arrested. But that is judicially absurd and illogical.

Without any previous cause for arrest, it could not have been “arrest” that the motorist was resisting, and for which they were charged. The only other factor present to these situations was the cop himself. Thus, it could only have been the cop himself they were resisting, not his enforcement of any law. That implies that when the cop threw each motorist to the ground, and then arrested them, it was not for violating the law. It was only for resisting the cop’s actions toward the motorist. They were assaulted for objecting to his actions, and then arrested for having resisted his assault on them.

What glares out at us from these incidents is first, they are cases of violence imposed for its own sake. Second, in charging for “resisting arrest,” the cop had substituted himself for the law. Third, it was the cop as law that the motorist violated and not the law itself. (And that may explain why some cops, like Chauvin, find death in custody to be legitimate.) And fourth, all motorists in these examples were black. These commonalities all raise serious questions about policing in the US.

According to a report in the SF Chronicle of April 29, 2015 (page A1), black people are 8 times more likely to be charged with resisting arrest in SF than white people. Black people account for 6% of the city’s population, but 45% of arrests for resisting arrest, even when suspected of non-felonies.

That is serious enough, given the ethical requirement that the police be neutral and even-handed in enforcing the law. But we have seen that, in these minor cases of traffic stops, none of that holds. It is the presence of the police to the motorist that is responsible for an interaction leading to violence (brutality) committed against the motorist, not anything the motorist did besides speak (or not). No necessity for violence existed in the traffic stop. That means that the cause for the cop’s assault was the presence of the cop to the driver. Furthermore, given that only words were exchanged, it had nothing to do with standard law enforcement. Indeed, it is only the cop’s assault on the person that signifies that the person had violated some law. In short, it was the cop’s actions, and not any criminal act on the part of the motorist, that rendered the motorist subject to arrest. The cop’s action, and nothing else, was translated into a criminalization of the motorist.

If this appears to be arbitrary on the part of these cops, its consistency throughout the country makes its arbitrarity institutional. Can an institution train its agents to be arbitrary? Or do these police officers obtain permission to act arbitrarily from a source other than their training? If so, and something beyond training procedure now legitimizes arbitrary acts of police assault on people (acts that normally would be considered criminal acts), then we have a serious problem. It is precisely these attributes of police operations that were illustrated in Berkeley Copwatch’s presentation (Feb. 3, 2021) about five acts of police brutality in that small town during 2020.

From a lay person’s perspective, it goes without saying that beating or manhandling a person for whatever the person might have said (or not said) is unconstitutional. For that reason, a person might conclude that the cop’s actions (with respect to those motorists) amounted to criminal assault. In that sense, these drivers, to the extent they resisted, were arrested for defending themselves against a criminal assault on their person. And that implies that, in constitutional terms, a double violation of the law occurred. Not only was speech suppressed by being the cause for assault on the speaker’s person, but there was a withholding of due process, making the deprivation of liberty wrongful. Constitutionality, as well as law enforcement, have been thrown to the winds by the police.

But law enforcement has already been abandoned in “racial profiling,” which is clearly in progress, according to the SF Chronicle article cited above, and thus including these incidents. The main thing to understand about racial profiling is that it is the inverse of law enforcement. In law enforcement, when a crime is committed, the police look for a suspect to charge with that crime. In racial profiling, there is first an act of suspicion, the production of a suspect, and then an attempt to discover (or invent) a crime with which to charge that suspect.

Clearly, the raciality of the act of suspicion by the “profiling” cop reflects a deep-seated racism. But is the racism in the cop, or in the police profession, or in the department? Is there a difference?
When Floyd was thrown to the ground by a team of cops after he was in custody, and Chauvin knelt on his neck, with others of the team holding him down, Chauvin knew that none of the other cops on his team would stop him. It is clear, from Chauvin’s face in the video, that he intends to kill Floyd. People can be heard yelling to let him go, to stop torturing him. An officer stands between the act of crushing Floyd’s life out of him and those on the sidewalk, to keep the people at bay. Was Chauvin acting out his individual racism, or the institutional racism of his police department as represented by his team’s cooperation? Is there a difference? Doesn’t this cop become the personification of the inseparability of individual and systemic racism? Indeed, acts of individual racism occur because an institutional racism exists that ensures a person can get away with it.

Nandi Cain, a young black man in Sacramento, was jaywalking on April 10, 2017. A cop stopped him on the street. He questioned the cop’s motive for stopping him, and he was thrown to the ground, and beaten by the cop – “for some unknown reason,” says a department spokesperson. Cain was then charged with resisting arrest.

The full spectrum of elements of police violence and irrationality are present here, the profiling, the arbitrarity of the assault, the intention to cause pain. For what? To elicit abjection, compliance to the point of obeisance? The cop must know what he is doing. And he knows he can get away with it because Cain can’t defend himself without being charged with assault. What does this cop become if such brutality and irrationality (defense as assault) is ethical and permissible for him, not as a person but as a cop? Does the irrationality of his actions provide the rationale?

This cop had simply used his fists. But the police of the US have been given highly technological instruments, such as tasers (stun guns), tear gas, and pepper spray to use against people who are non-compliant. If the only purpose for these instruments is to cause pain, not only do they becomes instruments of torture, but they provide the rationale for an ethic of torture. The police explain these instruments as “non-lethal” possibilities for controlling people. That is patently absurd. There are no lethal means that can be used to control people. Once a person is killed, or wounded, the entire issue of control is thrown out. The purpose of lethal means (the act of killing), which is implied by the use of “non-lethal,” lies somewhere else, somewhere deeper in the psyche of this country.

[This article contains excerpts from a work in progress called “Brutality: a Study of Police Culture in the US,” which is also looking for a publisher.]

Steve Martinot is Instructor Emeritus at the Center for Interdisciplinary Programs at San Francisco State University. He is the author of The Rule of Racialization: Class, Identity, Governance, Forms in the Abyss: a Philosophical Bridge between Sartre and Derrida (both Temple) and The Machinery of Whiteness. He is also the editor of two previous books, and translator of Racism by Albert Memmi. He has written extensively on the structures of racism and white supremacy in the United States, as well as on corporate culture and economics, and leads seminars on these subjects in the Bay Area.