Reclaiming Black Dignity

Essay - by Online Edition - Volume 99

Abstract

As American society seeks to institute police reforms in the wake of the protests following George Floyd’s murder, the imperative to include communities that have been disproportionately victimized by police in those reform processes becomes increasingly apparent. For members of these communities, questions of police reform implicate not only physical violence, but violations of human dignity itself. When police discriminate against individuals from a particular community, they enact a dignity taking on that community and claim that dignity for themselves. Therefore, for reform to be meaningful, the dignity taken by the police must be restored to the communities it was taken from. This can be achieved by excluding the police and their unions from the reform process, creating elected civilian review boards with the power to fire, and removing an assortment of police privileges.

Introduction

In the midst of a worldwide pandemic, the brutality of police misconduct and systemic racism in America has come to the forefront yet again. On May 25, 2020, Minneapolis police officers murdered George Floyd by kneeling on his neck for nearly eight minutes after he was accused of using a counterfeit twenty-dollar bill to buy cigarettes.[1] His death has led to ongoing protests that have survived initial rioting and pushed the country to confront police violence.[2]

The response has not been limited to the streets. Several House Democrats have submitted a bill that would expand the definition of lynching and end qualified immunity for police.[3] On June 7, the Minneapolis City Council announced its intent to defund and abolish the city’s police department.[4] Despite these promising first steps, it is not clear what the reconstituted Minneapolis police force will look like, or even if the promised reform will take place.[5] This Essay argues that when police target members of a discrete community they commit a “dignity taking” against that community—in effect, the police elevate their own status at the expense of the targeted community. As police departments are reformed or reconstituted in the wake of current protests, two things must occur if the changes are to be meaningful and lasting: community voices must be amplified and empowered, while police and their unions must be excluded. This Essay explains why, and offers specific details on this process.

I. Dignity Taking

Since the late seventeenth century, Western legal systems have equated the concept of dignity to the equality of human worth.[6] “Every man a duke, every woman a queen, everyone entitled to the sort of deference and consideration, everyone’s person and body sacrosanct . . . .”[7] This conceptualization of dignity is partly reflected in the Declaration of Independence (“all men are created equal”) and the French Declaration of the Rights of Man (“[m]en are born and remain free and equal in rights”).[8] This concept of dignity is wholly expressed by the Black Lives Matter movement’s call for equality before the law and equal treatment by law enforcement.[9]

Bernadette Atuahene developed the concept of a dignity taking during her examination of South African land restitutions. She defines such takings as instances when “a state directly or indirectly destroys or confiscates property rights from owners or occupiers whom it deems to be sub persons without paying just compensation or without a legitimate public purpose.”[10] She ultimately removed the final element, refining the definition: “[T]here must be involuntary property loss as well as evidence of . . . intentional or unintentional dehumanization . . . or infantilization . . . of dispossessed or displaced individuals or groups. . . .”[11] Several scholars have since expanded beyond Atuahene’s initial focus on real property.[12] In earlier work, I have argued that unjust punishments inflicted by the state as well as police misconduct can also constitute dignity takings.[13] Briefly put, when the police engage in brutality against a group of persons, they take the dignity both of the individual they have brutalized and the community that was targeted.[14]

The racial or other discriminatory animus of police misconduct dehumanizes the targeted person and causes them to suffer a loss to their body, which is their property.[15] When an NYPD officer choked Eric Garner to death; when Freddie Gray died from severe spinal injuries after getting a “rough ride” in the back of a Baltimore police van; when Breonna Taylor was shot by police executing a dubious no-knock warrant; or when George Floyd was suffocated to death by an officer’s knee on his neck, the police took their property by taking their lives.[16]

But the police also take from communities when they systematically target specific communities based on invidious characteristics. That this happens is beyond question: I have used Department of Justice (DOJ) reports on police misconduct to demonstrate how policing agencies systematically target communities.[17] In Ferguson, Missouri, the DOJ found that African Americans were more likely to be searched when stopped.[18] Further, even though these searches revealed that they were less likely to have contraband, African Americans represented eighty-eight percent of all use of force incidents.[19] The report also found that officers refused to engage in such basic practices as wearing their name badges while in uniform, though they did wear bracelets in support of Darren Wilson, the officer who killed Michael Brown.[20]

The reforms recommended by the DOJ were the results of negotiation with the police departments and municipalities and only took half-measures towards improving future practice, as opposed to restoring the dignity of the harmed community through adequate corrective processes.[21] Moreover, because dignity takings are extraordinary takings, something more than mere monetary compensation is needed to restore what the person has lost.[22]

II. Where Does Taken Dignity Go?

When a traditional taking occurs, the state condemns the land, assesses the property, and then pays the owner fair market value before seizing the land and putting it to public use.[23] In other words, what was taken (land) is clearly transferred from one party (the private owner) to another (the state, or its beneficiaries). Conversely, in a dignity taking, the ultimate destination of what is taken (dignity) is not readily discernable. This Essay argues, and the recent Black Lives Matter protests make clear, that dignity accrues to the police under policing policies and practices that dehumanize communities. The dignity of the police accrues at the expense of over-policed communities.

It is often forgotten that early English police in London were not held in high regard and were made fun of on stage and in the streets as “old and infirm, cowardly and ineffectual.”[24] In the United States the police initially fared little better when they were equated with political factions and rampant graft in many cities.[25] The corruption and graft of officers in many departments continued into the 1950s when reforms finally cleaned up many departments and increased their respect in the eyes of the public.[26] Since the early twentieth century police unions have sought to improve upon this situation by increasing public perception that officers were heroic and civic-minded.[27]

But it was after World War II that police forces increasingly resorted to race-baiting in order to foment panic among the general population.[28] This tactic increased with the advent of the War on Drugs, when police and politicians alike engaged in dog-whistle tactics, including the use of inflammatory terms such as “predators” and “welfare queens.”[29] Both political parties have pandered to a law-and-order mentality, and the result has been a dehumanization of persons accused of crimes, indeed of entire communities, and the militarization of the police.[30] Even during the current pandemic the LAPD was able to push through increased wages and bonuses for their officers as other services were being cut and other essential workers received no similar raises.[31]

The loss of dignity from minority communities to the state can be correlated with a rise in protections for police officers.[32] As the ongoing protests demonstrate, this long process of augmenting police dignity at the expense of minority communities has worked. What has been transferred, in essence, is not land, but the freedom to act and the protection of law.[33] Police officers are able to act with impunity against the very minority communities they target. Their “takings” appear in the form of various laws: laws that seal complaint records, laws that enable tactics like “stop and frisk,” and laws that enable illegal searches but prohibit individuals from resisting or questioning those searches.[34] Police dignity is further bolstered by unfairly weighted grievance procedures, overseen by police unions, and usually resulting only in light punishments for officer misconduct.[35] Finally, in many states, such as New York, police misdeeds are protected by laws that seal complaint records, and local governments cover officers’ tort liability if they are not found to have qualified immunity.[36] These measures have produced unaccountable police officers who view the communities they are supposed to be protecting as their enemies.

III. Dignity Restitution

In order to restore the balance of dignity, there must be a transfer of dignity from the police back to targeted communities to whom it belonged in the first place. Current policies that protect police from liability for misconduct and obscure records of the abuse skew the balance irredeemably in favor of the police over the policed. Consider the offer from Brevard County, Florida to hire those officers who have been fired or forced out for misconduct.[37] In making this offer departments perpetuate the notion that when an officer is fired it is because of “spineless leadership,” and that a good department has “got [the officer’s] back.”[38] Heightened police dignity lies in never having to admit wrongdoing or suffer any consequences for it. The unwillingness to discipline officers places all of the public at risk, but especially members of communities who are routinely targeted by the police.[39]

The only way to break this pattern is to “return” dignity to the communities from which it was taken through police brutality. Past responses to police brutality have implicitly recognized this need, but failed to go far enough. The construction of memorials, the changing of school curriculums, the granting of reparations to victims and their families, and the use of truth and reconciliation commissions can help give communities back their voice, but they are not enough.[40] These remedies can contribute to restoring community dignity, but they are not enough.

What is needed is the dismantling of the current police state and the creation of a new police force that is beholden to the communities they are sworn to protect and serve. Minneapolis has started the process by dismantling their current department, but other major cities must follow suit.[41] New York has started to remove the egregious privileges accrued to police officers by repealing secrecy laws that keep police officer evaluations from public review without permission from a judge or the officer.[42] The City of Chicago is considering following New Jersey’s lead and requiring licensing to be a police officers,[43] and many cities are defunding and demilitarizing police.[44] But leaders must go farther by ending of qualified immunity and indemnity so that rouge police officers are actually punished in tort.[45] Several cities have filed charges against officers that have committed abuses, but this must become routine—not an anomaly—and justice must not require days of mass protest to be realized.[46] In addition to these tentative steps, cities must adopt true civilian oversight of police in the form of civilian review boards, elected on a neighborhood by neighborhood basis, with the power to discipline and dismiss all officers.[47]

Above all else, to effect true reform and restore dignity to communities, the police must not be directly involved in these processes. Police unions have simply proven too effective at thwarting change.[48] Real reform requires that all officers should be required to reapply for the new department, and that the tactics, weapons, pay, discipline, and even purposes of policing be made open for public discussion. Real reform requires that the task of disciplining police be moved to open civilian review boards.[49] Real reform requires that police face consequences for targeting minority groups in the form of tort and criminal liability. For politicians who built careers on promises of law and order, this will be deeply troubling, but until the police are controlled by the communities they serve, instead of the other way around, abuses will continue.[50] Until the communities that have been targeted by police have a say in the control mechanisms of the police, their dignity will not be restored.

  1. .George Floyd: What happened in the final moments of his life, BBC (May 30, 2020), https://‌www.bbc.com‌/news‌/world-us-canada-52861726 [https://perma.cc/CQH7-9CC9]. ↑
  2. .Abby Phillip, George Floyd protests have made police reform consensus position, CNN Politics (June 9, 2020, 7:32 PM), https://‌www.cnn.com‌/2020‌/06‌/09‌/politics‌/police-reform-consensus-floyd-protest‌/index.html [https://perma.cc/DE62-XK9Q]. ↑
  3. .Claudia Grisales, Susan Davis & Kelsey Snell, Democrats Unveil Police Reform Legislation Amid Protests Nationwide, NPR (June 8, 2020, 5:00 AM), https://‌www.npr.org‌/2020‌/06‌/08‌/871625856‌/in-wake-of-protests-democrats-to-unveil-police-reform-legislation [https://perma.cc/QD92-M9JS]. ↑
  4. .Aaron Ross Coleman, Minneapolis may be the first city to dismantle the police, Vox (June 8, 2020, 3:30 PM), https://‌www.vox.com‌/2020‌/6‌/8‌/21283980‌/minneapolis-defund-the-police-george-floyd-black-lives-matter [https://perma.cc/8CGZ-6LQY]. ↑
  5. .In August, the Minneapolis Charter Commission voted to delay a ballot measure that would have altered the city charter to allow for the dismantling of the police department. The commission’s vote means the ballot measure is unlikely to appear on the November ballot. See Holly Bailey, Plan to disband Minneapolis police halted in city commission vote, Wash. Post (Aug. 5, 2020, 9:06 PM), https://www.washingtonpost.com/nation/2020/08/05/plan-disband-minneapolis-police-department-halted-city-commission-vote/ ↑
  6. .Jeremy Waldron, Dignity, Rank, & Rights 30–33, 55–57 (Meir Dan-Cohen ed., 2012). ↑
  7. .Id. at 34. ↑
  8. .The Declaration of Independence para. 2 (U.S. 1776); Declaration of the Rights of Man and of the Citizen art. 1 (Fr. 1789). ↑
  9. .See Orisanmi Burton, Black Lives Matter: A Critique of Anthropology, Soc’y for Cultural Anthropology (June 29, 2015), https://culanth.org/fieldsights/black-lives-matter-a-critique-of-anthropology [https://perma.cc/4VZN-VTCX] (arguing that the Black Lives Matter protestors are drawing attention to the way that the state targets and seeks to annihilate Black bodies). ↑
  10. .Bernadette Atuahene, We Want What’s Ours: Learning from South Africa’s Land Restitution Program 21 (2014). ↑
  11. .Bernadette Atuahane, Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss, 12 Ann. Rev. L. & Soc. Sci. 171, 178 (2016). ↑
  12. .See, e.g., Stephen Engel & Timothy Lyle, Fucking with Dignity: Public Sex, Queer Intimate Kinship, and How the AIDS Epidemic Bathhouse Closures Constituted a Dignity Taking, 92 Chi.-Kent L. Rev. 961 (2017); Jamila Jefferson-Jones, Extending Dignity Takings: Re-Conceptualizing the Damage Caused by Criminal History and Ex-Offender Status, 62 St. Louis U. L.J. 863 (2018); Matthew P. Shaw, Creating the Urban Educational Desert Through School Closures and Dignity Taking, 92 Chi.-Kent L. Rev. 1087 (2017). ↑
  13. .See John Felipe Acevedo, Dignity Takings in the Criminal Law of Seventeenth-Century England and the Massachusetts Bay Colony, 92 Chi.-Kent L. Rev. 743, 744–45, 747–48 (2017) (asserting that when a punishment ceases to serve a purpose of punishment it becomes a dignity taking); see also John Felipe Acevedo, Restoring Community Dignity Following Police Misconduct, 59 Howard L. J. 621, 625 (2016) (arguing that a dignity taking occurs when police engage in misconduct against a targeted community) (hereinafter Acevedo, Restoring Dignity). ↑
  14. .Acevedo, Restoring Dignity, supra note 13, at 628–29. ↑
  15. .Id. ↑
  16. .Dominic Bradley & Sandra Katz, Sandra Bland, Eric Garner, Freddie Gray: The Toll of Police Violence on Disabled Americans, The Guardian (June 9, 2020, 6:30 AM), https://‌www.theguardian.com‌/commentisfree‌/2020‌/jun‌/09‌/sandra-bland-eric-garner-freddie-gray-the-toll-of-police-violence-on-disabled-americans [https://perma.cc/9L6N-TUW5]; Richard A. Oppel Jr. & Derrick Bryson Taylor, Here’s What You Need to Know About Breonna Taylor’s Death, N.Y. Times (Sept. 1, 2020), https://www.nytimes.com/article/breonna-taylor-police.html [https://‌perma.cc‌/44KH-W66B]. ↑
  17. .See, e.g., Acevedo, Restoring Dignity, supra note 13, at 632–39. ↑
  18. .U.S. Dep’t of Justice Civil Rights Div., Investigation of the Ferguson Police Department 62 (2015). ↑
  19. .Id. ↑
  20. .Letter from Christy E. Lopez, Deputy Chief, Special Litig. Section, Civil Rights Div., U.S. Dep’t of Justice, to Thomas Jackson, Police Chief, Ferguson Police Dep’t (Sept. 26, 2014) (available at https://www.justice.gov/sites/default/files/crt/legacy/2014/11/04/ferguson_ltr_bracelet‌_9-26-14‌.pdf). ↑
  21. .Acevedo, Restoring Dignity, supra note 13, at 640–41. ↑
  22. .Bernadette Atuahene, From Reparations to Restoration: Moving Beyond Restoring Property Rights to Restoring Political and Economic Visibility, 60 SMU L. Rev. 1419, 1444–46 (2007). ↑
  23. .Kelo v. New London, 545 U.S. 469, 475–77 (2005) (describing the takings process). ↑
  24. .J.M. Beattie, Policing and Punishment in London 1660–1750: Urban Crime and the Limits of Terror 79 (2001). ↑
  25. .Marilynn S. Johnson, Street Justice: A History of Police Violence in New York City 15–16 (2003). ↑
  26. .See Thomas Reppetto, The Blue Parade, 250–53 (1978). ↑
  27. .Id. at 110–11 (describing early unionizing efforts in Boston by police officers). ↑
  28. .See, e.g., Mike Davis, City of Quartz: Excavating the Future in Los Angeles 294–95 (1992) (recounting LAPD Chief Parker using the racist threat of hordes of criminal black men living in South-Central Los Angeles to promote police funding and power in the city). ↑
  29. .Ian Haney Lopez, Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism & Wrecked the Middle Class 4, 50–52 (2014); see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 46–48 (2011); Joseph Margulies, Abandoned Symbols: Confederate Flags and Criminal Justice, Justia (June 29, 2015), https://‌verdict.justia.com‌/2015‌/06‌/29‌/abandoned-symbols-confederate-flags-and-criminal-justice [https://perma.cc/7MDQ-SAJL] (stating that terms such as “Willie Horton, the welfare queen, the crack whore . . . have generated an entire set of divisive law enforcement and prosecution strategies”). ↑
  30. .See Radley Balko, Rise of the Warrior Cop: The Militarization of American Police Forces 102–04, 126–30 (2014); see also Alexander, supra note 29, at 46–48; Acevedo, Restoring Dignity, supra note 13, at 631. ↑
  31. .Josh Caine, LAPD Getting Bonuses and Raises During Coronavirus Budget Crisis, L.A. Daily News (May 26, 2020, 7:58 AM), https://www.dailynews.com/2020/05/26/lapd-getting-bonuses-and-raises-despite-coronavirus-budget-crisis/ [https://perma.cc/TAG3-37L7]. ↑
  32. .See John Felipe Acevedo, Crime Fantasies, 46 Am. J. Crim. L. 193, 230–231 (2019); Acevedo, Restoring Dignity, supra note 13, at 628–631. ↑
  33. .See Farhad Manjoo, Opinion, Black Lives Matters is Winning, N.Y. Times (June 10, 2020), https://‌www.nytimes.com‌/2020‌/06‌/10‌/opinion‌/black-lives-matter-protests.html?action=click&module=Opinion&pgtype=Homepage [https://perma.cc/6TJ3-JS9L] (describing American law enforcement culture as one that “does not regard black lives as worthy of protection”). ↑
  34. .James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America, 153–54 (2017). ↑
  35. .Id. at 170–71; see e.g., Balko, supra note 30, at 186–89 (describing the Christopher Commissions’ criticism that the LAPD complaint system resulted in minimal punishments of offending officers). ↑
  36. .Editorial Board, Editorial, Ending Secrecy on Police Misconduct, N.Y. Times (Feb. 13, 2015), https://‌www.nytimes.com‌/2015‌/02‌/14‌/opinion‌/ending-secrecy-on-police-‌misconduct.‌html?searchResult‌Position=2 [https://perma.cc/HMK5-NFBT] (describing a New York law that makes it difficult to learn the names of police officers who have committed misconduct including officer involved shootings); see Acevedo, Restoring Dignity, supra note 13, at 632 & n.56. ↑
  37. .Alice Lee, Florida Police Organization Offers to Hire Cops Who Were Fired or Resigned over Police Misconduct, CNN (June 8, 2020, 3:22 PM), https://‌www.cnn.com‌/2020‌/06‌/08‌/us‌/brevard-county-florida-police-union-misconduct-trnd‌/index.html [https://perma.cc/K9G7-YNAR]. ↑
  38. .Id. ↑
  39. .E.g. Dakin Andone, Hollie Silverman, and Melissa Alonso, The Minneapolis Police Officer Who Knelt on George Floyd’s Neck Had 18 Previous Complaints Against Him, Police Department Says, CNN (May 29, 2020, 5:39 PM), https://‌www.cnn.com‌/2020‌/05‌/28‌/us‌/minneapolis-officer-complaints-george-floyd‌/?hpt=ob‌_blogfooterold [https://perma.cc/MV9Q-7C5E]. ↑
  40. .See Acevedo, Restoring Dignity, supra note 13, at 647–49 (providing the example of the City of Chicago’s reparations plan following the “Midnight Crew” run, led by Jon Burge, that tortured confessions out of numerous black men). ↑
  41. .Coleman, supra note 4. ↑
  42. .Luis Ferré-Sadurní, Jeffery C. Mays & Ashley Southall, Defying Police Unions, New York Lawmakers Ban Chokeholds, N.Y. Times (June 8, 2020), https://‌www.nytimes.com‌/2020‌/06‌/08‌/nyregion‌/floyd-protests-police-reform.html?action=click&module=Top%20Stories&pgtype=Homepage [https://perma.cc/AYG9-QAJY] (describing the move to repeal the 1970s era law). ↑
  43. .Fran Spielman, Lightfoot Embraces Idea of Licensing Officers, Chi. Sun-Times (June 9, 2020, 4:55 PM), https://‌chicago.suntimes.com‌/city-hall‌/2020‌/6‌/9‌/21285711‌/chicago-police-officers-licensing-reform-george-floyd-lightfoot [https://perma.cc/9BB5-JYKB]; see also Samantha Maldonado, New Jersey Announces Law Enforcement Reforms in Wake of Protests Against Police Brutality, Politico (June 2, 2020, 4:45 PM), https://‌www.politico.com‌/states‌/new-jersey‌/story‌/2020‌/06‌/02‌/new-jersey-announces-law-enforcement-reforms-in-wake-of-protests-against-police-brutality-1290154 [https://perma.cc/63KQ-A4DH]. ↑
  44. .Farah Stockman & John Eligon, Cities Ask if It’s Time to Defund Police and ‘Reimagine’ Public Safety, N.Y. Times (June 5, 2020), https://‌www.nytimes.com‌/2020‌/06‌/05‌/us‌/defund-police-floyd-protests.html?searchResultPosition=2 [https://perma.cc/X6XE-72BW]. ↑
  45. .See Michael C. Dorf, Would Eliminating Qualified Immunity Substantially Deter Police Misconduct?, Justia (June 10, 2020), https://‌verdict.justia.com‌/2020‌/06‌/10‌/would-eliminating-qualified-immunity-substantially-deter-police-misconduct [https://perma.cc/PV6P-FLQV] (discussing the benefits and potential dangers of eliminating qualified immunity). ↑
  46. .E.g. Theresa Waldrop, The Charges Against 4 Officers Involved in George Floyd’s Death, Explained, CNN (June 4, 2020, 10:04 PM), https://‌www.cnn.com‌/2020‌/06‌/04‌/us‌/george-floyd-officers-charges-explained‌/index.html [https://perma.cc/5MFK-5EU9]; Ashley Southall, Officer Who Violently Shoved Protester in Brooklyn Is Charged with Assault, N.Y. Times (June 9, 2020), https://‌www.nytimes.com‌/2020‌/06‌/09‌/nyregion‌/nypd-officer-vincent-dandraia-arrest.html [https://perma.cc/5BAE-Y96L]; see also Amelia Thomas-DeVeaux, Nathaniel Rakish & Likhitha Butchireddygari, Why It’s So Rare for Police Officers to Face Legal Consequences, FiveThirtyEight (June 4, 2020, 6:00 AM), https://‌fivethirtyeight.com‌/features‌/why-its-still-so-rare-for-police-officers-to-face-legal-consequences-for-misconduct‌/ [https://perma.cc/R9UR-HNX8] (highlighting the significance and rarity of prosecution of police misconduct). ↑
  47. .See Alexa Doiron, Police Oversight: Is a Civilian Review Board Needed in the Historic Triangle?, WY Daily (June 10, 2020), https://‌wydaily.com‌/local-news‌/2020‌/06‌/10‌/police-oversight-is-a-civilian-review-board-needed-in-the-historic-triangle‌/ [https://perma.cc/AP7N-7YGZ] (explaining the concept of civilian review boards). ↑
  48. .See Marshall Cohen, Sara Murray, David Shortell, Katelyn Polantz & Mark Morales, Police Unions Dig in as Calls for Reform Grow, CNN (June 8, 2020, 9:18 PM), https://‌www.cnn.com‌/2020‌/06‌/08‌/politics‌/police-union-reform-protests‌/index.html [https://perma.cc/3A68-X4VK] (describing both the growing resistance to reform in 2020 and the past resistance to reform by police unions). ↑
  49. .Doiron, supra note 47; see also Joe Lonsdale, Police Unions: Part of the Problem, N.Y. Daily News (June 9, 2020, 5:00 AM), https://‌www.nydailynews.com‌/opinion‌/ny-oped-police-unions-part-of-the-problem-20200609-x223ok3mmbhnze4dv73yqdbbhy-story.html [https://perma.cc/X45R-X2C3]. ↑
  50. .See Tim Alberta, Is This the Last Stand of the ‘Law and Order’ Republicans?, Politico Mag (June 8, 2020, 4:30 AM), https://‌www.politico.com‌/news‌/magazine‌/2020‌/06‌/08‌/last-stand-law-and-order-republicans-306333 [https://perma.cc/6UMJ-CFXR] (noting that most Democrats have moved away from law and order politics, but many Republicans still advocate for it even as some party leaders are distancing themselves from the idea). ↑

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