Justice? Or “Just Us”

Photograph by Nathaniel St. Clair

Sean Monterrosa was shot by a cop in Vallejo (California) in May, 2020, during demonstrations all over the country protesting police brutality, police criminality, and police racism and violence against civilians. George Floyd and Bryonna Taylor were the icons for this movement, chosen to represent the hundreds of people shot and killed by police during those months. They became emblems for the call to rein in the police. Defunding, abolition, ending plea bargaining, and humanizing responses to persons experiencing psychological episodes and emotional trauma were proposed. The police response was (in general), “you can’t abolish us; you need us.” Yet now, not only is Monterrosa dead, but the cop who killed him got his job back with back pay and benefits.

On average, the police kill a thousand people every year across the country by shooting or strangling or beating. That’s almost three a day.

Justice? How do we provide justice for a dead man? The Native Americans laugh angrily at this. They point out that what settler colonialism means by “justice” is “just us.” It refers to those who reserve the power to determine who “deserves” it.

It goes all the way back. It started with colonial exclusion of the indigenous; then the enslaving of kidnapped Africans. Then came the building of a Jim Crow culture that allowed white people to torture or kill black people at will, or get bounties for killing the indigenous. From 1876 all the way to crushing the life out of George Floyd on video in 2020, it’s all the same white justice.

Today, with 5% of the world’s population, the US houses 20% of the world’s prisoners. That signafies an attitude toward the people by the police. When the cop who shot Sean Monterrosa got his job back, it was as if the state was saying “well done, officer.” And that puts all of us in the “just us” category. We are left to ask, where is “our” justice? Where is the justice that is “human,” that does not imply oppressive imprisonment or a withholding of rights?

Many people have turned to the Constitution, reading it carefully, hoping to find a resolution to this dichotomy between justice and “just us,” and a response to the problem of police militarization. The Constitution lists rights without democratizing them. Yet we feel them eroding under the despotic powers of a strengthened executive. And we notice that even City Councils today struggle to maintain a democratic ethic in the face of city police departments. Using the “war on drugs,” police departments across the country have taken executive power for themselves, a power to punish that they do not legitimately have.

But then, we notice that the Constitution does not refer to “justice,” except for a brief reference in the Preamble. It does, however, make backhanded reference to “due process,” which we will look at below, to make up the deficit.

The death of Sean Monterrosa

They kill as agents of the government, and when they “get off,” it means the government accepts them killing its people. They even claim there is a “crime” problem, but do so to keep the government paying larger salaries, and offering bigger guns. And in the middle of a parking lot, Sean Monterrosa is murdered by a cop.

It happened in a Walgreen’s parking lot. He had just texted his sister about a petition he had seen for prosecuting the cop who had killed George Floyd (May 2020). Cops were converging, apparently suspecting looting. An unmarked car containing three cops approached Monterrosa, who was alone in the lot. The car saw him and approached. He got on his knees with his hands in the air. The cop who shot him was in the back seat of the car with a rifle. He shot at Monterrosa five times, hitting him once and killing him. He was in such a hurry to shoot that he shot him through the windshield of the car, shattering it.

The cops come up with their usual excuses; Monterrosa had a weapon, we felt threatened, he put us in danger, etc. Under the 4th Amendment guaranteeing the security of personhood, a warrant to search or arrest must be obtained with evidence. For a cop to say he felt threatened is not evidence. To claim it as evidence is to be fraudulent. But it allows a sefl-defense plea. They claimed he was in a crouch, a “tactical shooting position,” and that he was approaching the car. If the police cannot distinguish between a surrender and a shooting position and an approach, they are perhaps unfit for police duty. And if they use rhetoric in that way, then they must be lying.

The cop was put on leave, and then fired (in October 2002). That would seem to close the case. But it doesn’t. The cop sues to get his job back, and he gets it back, with back pay. The arbitrator in his case obviously believed him, that he saw a gun in Monterrosa’s hand (instead of a hammer in his pocket), and he felt threatened. So the arbitrator agrees with white justice — that is, “just us, white settlers with guns.”

But something changes everything in this scenario. According to a coroner’s report, Monterrosa was shot only once, in the back of the head. He took a “surrender” position when the car approached, but then was shot in the back of the head. How does that happen? Did the cops maneuver their car so they would have a clear shot at Monterrosa’s back? The shooter didn’t allow time for that. So perhaps, Monterrosa saw the car was not marked “police,’ and got up to walk away? And the shooter was in such a hurry to shoot because Monterrosa’s walking away would deprive him of his opportunity.

Can we assume that the cop, shooting through the window, had to hit Monterrosa with his first shot, since it would be difficult to aim through a shattered window?

In any case, Monterrosa posed no threat, no probable cause, no reason to shoot. The cop was in a hurry for his own reasons. Perhaps he didn’t want to lose his chance. Perhaps he felt the same way as Zimmerman did when he killed Trayvon Martin. He had said, on the phone to a cop,  “they always get away.” Both Zimmerman and this cop grabbed their opportunity to kill. And both got off. Neither one did any time for their killing. So it is, as it has always been, for the cops, both official and unofficial, “justice” means “just us.”

Facing the police, we have no access to justice. There is no justice for Monterrosa, nor for his family, nor for the rest of us.

Is there a cabal at work?

But now we have a second mystery, that windshield. That night, when the car got back to its garage, someone in the Vallejo PD changed the glass, trashing the broken one and installing a new one. Destroying evidence is a crime. A cop did that. Of course, we see it all the time. After 9-11, Bush had the wreckage cleared immediately, destroying the evidence of what had happened. That way, the story the government or its agents told remained uncontested and uncontradicted. So Bush now provides the role model for the cops. They want their story to be uncontested. But why?

Does this have anything to do with the arbitrator believing the cop’s story and giving him his job back? He did it against what evidence is left (an unmarked car, a man shot in the back). Was this the way the police recall guilty cops from unemployment? Is this the way the cops “always gets away.”

Part of the answer lies in the fact that the police work for the government. When the police kill, they are killing one of the government’s constituents. Doesn’t the government give a damn about its own people? If the state gave a damn, it would remove any cops who had a penchant for violence, and who liked to kill people in the name of the state. And especially those who kill with pre-meditation, like Zimmerman. But it doesn’t give a damn. Indeed, the state didn’t even investigate this killing.

When Monterrosa was killed, the Solano County DA recused herself from investigating the case; scared perhaps it would ruin her career? And the California AG Becerra refused to investigate the killing; afraid to ruin his career also? No federal  investigation has occurred (until now, when the cop got his job back, and the family was outraged). Were these officials of the judicial system both campaigning for support of the police? Were they both letting the police know that they were down with “just us”? Is that the reality of how this country is run?

In 2022, an independent third party investigator found Jarrett Tonn, the cop who shot Monterrosa, had violated PD policies: unreasonable deadly force, no de-escalation, and non-activation of body camera. Tonn was fired in October, 2022, two years after he killed the man. And now, in October, 2023, he gets his job back with all back pay.

Had members of the Vallejo PD gotten together to get him back? Is it because they want someone on the force who wants to kill? The cop was exonerated in arbitration. In receiving back pay and benefits, he was not held responsible for his use of force. He was known for having shot two other unarmed civilian in the past. It suggests that the entire procedure might have been rigged. The arbitrator and the police association and the police hierarchy knew what they wanted. They wanted him back, so they perhaps maneuvered to get him a hearing with the right arbitrator, in order to get this violent man back on the police force. Yes, there’s a crime problem.

Is justice still possible?

There is a DA in Alameda County who believes in the Constitution. Her name is Pamela Price. The Constitution holds that no person shall be killed (deprived of life) without due process of law. Failing that (since due process must come before a deprivation), there would have to be accountability. The fact that an elected officials must call for accountability is a recognition and admission that agents of the government (like the police) have been violating the law. All were sworn in. All swore to uphold the Constitution. And none were hired to issue punishment to any one. That means they must act according to evidence. Feeling threatened is not evidence.

This DA is straightening out a number of cold cases that the state did not want to pursue, and she is working on the basis of the evidence rather than on subjective attitudes. She is circumspect about using sentence enhancements because they reflect a desire for increased vengeance. Often, such enhancements reflect racism rather than a sense of justice. Yet, for this, some people are trying to develop a recall procedure on her. That is, they want to get her off her job because she prefers the Constitution to enhanced vengeance. And her desire to work with the Constitution means to hold criminal cops (who violate the Constitution) accountable.

It is the opposite form of recall. The cop was recalled (given back his job) because he killed a man. She is facing possible recall (to remove her from her job) because she wants to hold such law-breaking officers accountable. Those who want to get rid of her scream about a crime wave as a desire for a “safe society.” How can they hold killers accountable when the police themselves serve as a role model for killing? They worry about a DA who they fear will “leave criminals out on the street.” Yet in recalling this cop, they are insisting on leaving this particular killer out on the street.

The question of intent

Tonn is heard saying on his lapel mike after shooting Monterrosa, “what did he point at us?” Clearly, he was hallucinating. As he was when he saw a hammer in Monterrosa’s pocket as a gun in the man’s hand. He must have been hallucinating when seeing a man attacking him. Are these cops being train to hallucinate? Was he hallucinating when he swore to uphold the Constitution? How could he not be when he aimed to kill a person who was covered by that Constitution.

His first bullet must have shattered the class he shot though, so he couldn’t see his target clearly after that first shot. Yet he kept on firing. He fired five shots, unable to see he had already hit Monterrosa (in the back of his head) with his first one.

When Vincent Bryant was shot in Berkeley, in 2021, for refusing to lie down on the ground, after allegedly stealing a $7 sandwich from Walgreens, the cop wounded him in the jaw. But if the cop hit him in the jaw, it means he was aiming for his head; and that means he was intending to kill him. For a $7 sandwich? That is nothing but a bloodlust.

It all simply suggests that the cops aim to kill. This society, that wants cops who kill, is a bloodthirsty one. It is its bloodthirst that wants to recall a humane DA so they can get a PD that will fulfill their desire for blood.

Monterrosa was shot to death while assuming justice and respect one night in Vallejo. The cops responded, “no justice for you; this is “just us,” this is our justice.

For the 18 people who died after being shot by cops in Vallejo, no one has been held accountable. That means that the state supports the killing of its own people by its own agents. Then the state is a killer, and that means that no one is safe. And those who want government officials who will satisfy their blood lust become a danger to the rest of us.

A discussion of “due process of law”

Do you know what would have saved Sean Monterrosa’s life? It’s in the Constitution, called “due process of law.” The Constitution says no person shall be deprived of life, liberty, or property, except by “due process of law.” Indeed, both the 5th amendment and the 14th say “person” rather than “citizen,” and thus refer to any human being. That is the condition under which an act of deprivation (e.g. of life or liberty) can occur.

Yet “due process of law” remains undefined in the Constitution. Is this absence intentional? Is there a logic to that? In terms of policing, how could the “framers” foresee police power and how it has warped the concept of “the people.” The militarism of the police, their “military demand” for obedience, does it make them the ones who “form a more perfect union”? They do not form it for justice.

If the “framers” left some details out, they left them for “we, the people” to resolve. If a cop shoots a person to death, he violates the Constitution and his oath of office, and thus makes his felony double. Every cop who has shot at a person, or placed an unarrested person in handcuffs, or beaten a person, for whatever reason, is also doubly in violation of the Constitution. How are “we” (the people) to rectify that?

Let us start with what is missing from the “due process” provision. There is no mention of where, or under whose auspices, that “process due” must occur. Since it doesn’t say, it is up to us to determine. We can say that, where feasible, it would require a court of law. But in a neighborhood, in which a cop wants to shoot or handcuff a person, there must be some legal process due his victim first. There must be a law which gives the “people” the power to enact “due process.” And it must occur before a cop can handcuff or shoot or beat any person.

“We” need a law that provides legal time and space for due process to occur when we need it. In that legal time and space, a group of other persons would need to meet to provide a place for a hearing in which the cop, as depriver, and the person to be deprived, can confront each other as equals; a place where they can represent themselves as equals, speaking to each other from their own interests as equals. They are equals because equal before this ad hoc body authorized by law to determine whether the cop has the right to deprive the other of his/her rights. If an ad hoc body of persons could be called to collectively preside over a discussion between the cop and his subject concerning a deprivation of liberty (handcuffing) or life, that body would fulfill the provision of due process. We could call it a “local court of due process.”

Today, if a cop wishes to handcuff a person, he will probably shoot that person for walking away (it happens many times). A statute that a potential victim could call into being whenever needed would save a lot of lives. The statute would only need to specify the number of people needed (perhaps for a quorum). In a neighborhood, it would be easy to collect the required number of persons for this task. In a parking lot, there are shoppers and security guards and vendors to call upon. If a cop desired to shoot or beat a person, he would have to allow his potential victim to convene such a local “court” of due process. That body would hear his reasons, and then the objections of the person to be deprived, before giving the cop authority or withholding it.

Should such a system be instituted throughout the US, the number of people shot to death by the police would drop close to zero immediately, as would the number of people beaten or handcuffed. It would deconstruct the “police obedience paradigm.” It would guarantee a person’s power to walk away from anything but a valid warrant or real evidence of criminality.

It would seem that balancing the power between the police and the people in such a way would be essential to the people eventually trusting the police. Indeed, to institute “due process of law” in this way would democratize policing.

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.