(The militarization of the police, part 4)
We have been looking at the meaning of having people in uniform patrolling city streets with military weaponry. It is not a joke. It has led us to describe three levels of social violence, each one linked to police desires for a soldier’s attitude toward the people.
First, there is the violence that the insecurity of common ordinary life forces on people. Not all people, and not even many, but some, enough for the cops to use as propaganda about a “crime wave” by which to gain access to military weapons. They claim that, because there are so many weapons “out there” in people’s hands, they need fire-power equal to that. We hear about robberies, or beatings, or mass shootings by some guy who has lost it. And we have police brutality to serve as a role model for those people.
Second, there is the violence and the brutality of the police themselves. It emerges from their arrogance, and the power they have through their Command and Obedience Paradigm, which they use to set certain people up for execution. The Command and Obedience Paradigm brings a military style of presence into the middle of civilian life by making each cop a commanding officer, thereby providing every person with the threat of being charged with “disobedience.” It is a technique by which a cop can pick on someone, give them a humiliating command, and when the person refuses to obey, get violent with him or her.
And third, there is the structure of racialization, which the cops engage in. The structure of racialization is the machinery, run by white supremacy, by which this society is divided into races, a hierarchy of social identities (described in some detail in part 3 of this series). “Race” is something one group of people does to others, turning them into “castes” (as Isabel Wilkerson calls them). But it really divides society hierarchically into the racializers (white people who enact the racialization of all others) and the racialized (the form of subordination reserved for each other group).
And like clockwork, we see it all used again and again. During the first weeks of this new year, there was a mass shooting in Half Moon Bay, and a man named Tyre Nichols was beaten so badly by the cops after a traffic stop that he dies in the hospital, and there are heavy demonstrations in Atlanta over the police killing of an activist trying to save a park from development into a massive police academy, like a southern version of Berkeley’s People’s Park.
In the first, an Asian man goes berserk during an Asian festival, and shoots 7 people dead. Someone said that it was probably over job issues. In the second, the police beat a black man to death after the police cause an “encounter” (giving orders) with the motorist, causing him to run for his life, and then be beaten to death when caught. And finally, in Atlanta, the white power structure is given priority over the desires and needs of the people to their own territory, in what is clearly an element of a local class struggle, the people against the agency of white racial rule.
Every cop in every department is inextricably linked to those three forms of violence. Each cop, whether he sees himself doing them, carries the legacy of all of them with him in his uniform. All cops become the sign that all social violence is linked to the state. And any cop becomes another who can shoot someone in the back if he walks away, or if he sits in his car, or if he has been brought down on the ground. The cops now carry this with themselves, and now, they are to be given more military weapons to use on the street.
And it just keeps happening. It happened to Keenan Anderson in Los Angeles, on Thursday, Jan. 12, 2023. Anderson, a black man, was involved in a traffic accident. He signaled to LAPD to stop and give them (him and the others in the accident) some assistance. The cops throw him to the ground and try to handcuff him. And the usual thing occurs. He is seen in the cop’s lapel video lying there on the street, and the cop is yelling at him, “Stop or I’m going to tase you.” Stop what? He is lying on the street. Why is he lying on the street?
And that is where the hype starts. The cops make it appear that he was running away, a fugitive from traffic justice. They make it appear that he was resisting their brutality, a brutality they claim he had brought upon himself. And the police say they are investigating if Anderson had been under the influence of substances when they killed him. He’s dead. It is too late to ask if he was under the influence of a substance. Perhaps they want to use his substance abuse as the reason he died, with the implication that, as a criminal, they were right to kill him.
Two other black men were shot and killed by the LAPD during the first week in January, Takar Smith, and Oscar Sanchez. One was called mentally ill, and was shot to death in his own home; and the other was called homeless, and was shot to death somewhere unspecified.
Happy New Year, 2023.
Though these men died in Los Angeles, California, where military equipment is being offered to the police, neither of these death required additional armament. They were killed by cops with their hands on their own equipment. It is not the military equipment that needs to be evaluated, but the men and women in the PDs of California and throughout the US that need to be reevaluated.
During 2020, entire cities across the country were being shut down by crowds of people outraged by the extent to which the cops were killing people of color. This was when the murder of George Floyd and Bryonna Taylor were adopted as icons for a movement for curtailing the police. And a principle demand of those movements was to “defund the police” and substitute professional intervenors for them, people who could talk to the people on the street like human beings. But the idea of defunding the police brought about a large counter demand. The police pointed out that there was a new crime wave building. And the defunding idea sank into the background.
In two places of note, however, it actually started to take hold: Portland, Oregon, and Minneapolis, Minn. Minneapolis set up the most radical project to replace the police. It started with the perspective of engaging the communities in the process of figuring out a replacement, and inventing a new form of personal security in the neighborhoods. This reinvention of the police was to be tried in operation first before having City Council make the change. But first, the mayor turned against the idea, and then some other councilmembers. And so the idea was shunted over into the use of intervenors to investigate cases of mental illness or emotional disturbance without cops being brought in and scaring people with their weaponry.
And then, on April 11, 2021, Daunte Wright was shot at a traffic stop. And the police went back to their old tricks. The cops demanded that he get out of his car, and he asked them why. They said they would discuss it after he was out. When he got out of the car, they tried to handcuff him. He refused the cuffs and he was shot.
Portland, Oregon, had already been wrestling with police brutality. The Dept. of Justice had been brought in to engage with the police to attenuate its violence toward people with “mental illness.” By 2019, a voluntary citizen’s group called the Portland Committee for Community-Engaged Police was empaneled to make an evaluation of community trust, and to oversee its success in dealing with its many issues; viz. racial bias, mental health insensitivity, public safety, houseless people, traffic stops, etc. During the 2020 demonstrations against police brutality, Portland’s city center was taken over by citizen groups as liberated territory. And then, in 2022, Portland police shot and killed 4 people in different incidents.
They just don’t seem to know how to stop doing that.
An alternate Plan
I would like to propose an alternate plan. It is one that returns to the US Constitution, and does so in terms of an element of that Constitution that has been all but forgotten. Instead of trying to reform what police are doing, this proposal would respond to their propensity for violence with a thing called “democracy.”
It is not democracy as we have been led to understand it; that is, our having only a vote about what other people have decided. Democracy means participation in policy-making, that is, in that part of the democratic process before there is a vote, and to which the vote then makes reference. Democracy should mean: those who will be affected by a policy will be the ones who make the policy that will then affect them.
There is a hidden element of this democracy in the Constitution’s judicial structure. It is there as a phrase in a couple of clauses about Rights. In the 5th Amendment, it says: “No person shall be … deprived of life, liberty, or property, without due process of law.” And it appears again in the 14th Amendment, where it says: “Nor shall any State deprive any person of life, liberty, or property without due process of law.”
Those are the only two places in the Constitution that the little phrase, “due process of law,” appears. It doesn’t appear in the section on property, nor in the section on judiciality, nor in the section that sets up the legislature. It appears only where the Constitution offers guarantees of personal and private rights. Yet as a guarantee of private rights, it presents itself as a great equalizer. It can equalize between organizations and individuals, neutralize the power disparity between corporations and individuals, or become an equalizer between state agencies (like the police) and individuals. All it requires, as part of the Constitution, is recognition and a call to use.
How does it work?
When the Constitution says that no person shall be deprived of life, or liberty, or property without due process of law, it means that due process must precede that deprivation to be lawful. It doesn’t specify who or what would be qualified to bring the law to each case; only that the process due a person to be deprived occur first.
What this mean is that there could be a meeting of people, whether of judges or lay persons, whether of people from the person’s block or from their community, who would hear both sides. For instance, to be deprived of liberty (by handcuffing), or of property (by police seizure of houseless encampment items), or a person’s life (by shooting them), implies that the person to be deprived had to have a chance, was “due” a chance to argue against that deprivation before it could occur. Right there in front of everybody, onlookers and tourists and friends, the cop who wanted to handcuff a person would have to make an argument about why he wanted to handcuff the person.
A cop would have to stop before drawing his gun and ask for a body of community members to come and approve or deny his ability to do so. And similarly, he would have to call upon a group of community members before raiding a homeless encampment. In short, in order to deprive a person of a private right, the cop would have to call for such a meeting of neighborhood people, and they, as duly constituted residents, would fulfill such proceedings as “a tribunal with the power to decide the case” (from Black’s Law Dictionary).
Such a body could be duly-constituted in the moment (“duly” as in “due”), collected from the community, or the block, or a crowd that had gathered. And its necessity (constitutionally) would mark a break with a cop’s habit, with their tradition, with their thinking about their violence as what “goes without saying.”
Clearly, under such a system, the cops would lose their power to execute people on the spot. They would lose the ability to engage a person in a Command and Obedience Paradigm preparatory to shooting them. And they would lose the ability to further the interests of a structure of racialization, once having to make an argument for it to a body of the person’s community.
The people so constituted as a body to hear this “due process” would not need to know any law. They would hear the cop asking for permission to handcuff the person (or to shoot them), and the person arguing against his deprivation of liberty or life in that way. That would be the whole of the argument. There would be only one question of law. It would involve the statements made in the two Constitutional Amendments.
That might not be the case for other issues, involving other officials and other rights – the rights of corporations as “persons,” for instance. But while the issue would be the private rights of “human” persons, the principle would be the ability of a person to respond to a cop’s desire to deprive them of their rights. Just think of what would happen to city politics if the homeless, defending their encampment, could do so before a body consisting of members of a neighborhood association and local home owners and renters. The very fact of dialogue would be revolutionary.
Black’s Law Dictionary says, for “due process,” “The conduct of legal proceedings according to the rules and principles established in the systems of jurisprudence for the protection and enforcement of private rights, including notice and the rights to a fair hearing before a tribunal with the power to decide the case.” One of the principles of the US system of jurisprudence is that one be tried by a jury of one’s peers. So that is already a principle practiced in the judicial field. But Black’s Dictionary also says that this has to do with enforcement, the “enforcement of private rights.” And in the cases we are studying, this would mean protection from the cops.
The Constitution neither defines who can be on such a tribunal, nor what their tasks would be once included in it. In line with Black’s description, their role in adjudicating “due process” would not require anything more than an ability to reason from the arguments given, as peers of the person subjected to the cop’s proposed deprivation.
Of course, the police could decide to press charges, based on probable cause. But the establishment of “due process” would prevent the cop from engaging in their usual circular logic of arresting a person for resisting arrest. To arrest a person for resisting arrest implies that one had a prior reason to arrest them. But if that reason comes into play only through the actions of the cop, then there would have been no legitimate reason to arrest. As wholly generated by the cop through procedures, it loses its logical meaning. It is only the cop’s volition (perhaps expressed through the Command Paradigm) that the person is violating, and not the law.
If the cop was going to arrest the person for disobedience, the cop becomes both the source of the person’s misdemeanor and the agent who sets him up for arrest. Arrest for disobedience would lose its meaning in the same way that arrest for resisting arrest does. In both cases, the offense was created by the cop himself, with no relation to anything the person had done in the real world.
It is in that way that due process would become a great equalizer between a state agency (like the police) and an individual. Each would have equal say, arguing for and against the cop’s action, under the oversight by a community body called to adjudicate the issue.
In short, this application of “due process” would amount to a serious democratization of policing. And if the cops stopped someone on a rural road, with no one around, they could not deprive that person of any of his rights in the absence of a body that could adjudicate it.