Keep On: Thoughts on the Moral Aftermath of the Murder of George Floyd
Updated: Jan 3, 2021
“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
—John Stuart Mill, On Liberty (1859)
There’s a detail from the criminal complaint against the defendant, who on the day of the murder was wearing a police officer’s uniform and was earning, we may presume, a police officer’s salary and was entrusted, by dint of his police-officer job, with the safety and protection of citizens, concerning the murder of George Floyd, a human being and one of those citizens, in Minneapolis on May 25, 2020, which I can’t stop thinking about:
“The defendant pulled Mr. Floyd out of the passenger side of the squad car at 8:19:38 and Mr. Floyd went to the ground face down and still handcuffed.”
Eventually we’ll see the body camera footage. Maybe we’ll learn of some ambiguity. For now, we’ve only this grammatical certainty: George Floyd was in the police car at 8:19:37 p.m. His arms restrained, his liberty seized. Incapable of fleeing, incapable of scratching an itch. In every sense of the word, arrested.
Egregious and terrifying and unconscionable, of course, is what happened next: “The defendant had his knee on Mr. Floyd’s neck for 8 minutes and 46 seconds in total. Two minutes and 53 seconds of this was after Mr. Floyd was non-responsive.”
They took his liberty, for a few minutes. They pulled him out of the car. And then they took his life.
We’ve seen the video. Or parts of it. We’ve seen a few seconds. We’ve seen enough.
We’ve heard George Floyd call for his mother. We’ve heard him say he can’t breathe. We’ve heard that distinctive sorrow in his voice: we understand that he understands that he’s dying.
We also know how long that is.
Run a mile in 8:46. Keep track of how many times you consider how good it would feel to stop or slow down (or to speed up). Or to have some water. Or a beer. Or to flirt with a cashier or a carhop. Or to do something other than what you’re doing. Count the thoughts you have, the discrete considerations and reconsiderations that are possible to you because you’re alive and moving through the air, over the span of 8 minutes and 46 seconds.
Sherrilynn Ifill, president of the NAACP Legal Defense Fund, in an interview with Bill Whitaker of 60 Minutes, recognizes the moral effect of those 8 minutes and 46 seconds:
Bill Whitaker: Why was this incident such a spark?
Sherrilyn Ifill: I’ve been doing this work for a very long time. And I’ve seen a lot of terrible videos. And this one actually struck me differently also.
Bill Whitaker: What was different about it?
Sherrilyn Ifill: It was long. It was long. And to see someone’s life being taken from them with that kind of excruciating deliberation. The officer looking out at us like that.
Because it’s a long time, 8 minutes and 46 seconds, and because, as Elizabeth Alexander says in “The Trayvon Generation,” what we’re witnessing when we see that video is a “lynching,” there are hundreds of moments in the cell-phone video of the encounter, recorded by a young woman on the scene, a 17-year-old girl who, from all evidence, including her Facebook posts later that night contradicting the official police narrative about what happened to George Floyd, has a deeper reservoir of moral courage than the four police officers—because it’s long, and because it’s a lynching, and because we see the “excruciating deliberation,” there are hundreds of moments in the video that shock the conscience. Over and over. Every second or so.
Over 8 minutes and 46 seconds, the defendant has roughly 526 chances to make a moral correction.
Everything we see, for however long we watch, for however long we can make ourselves pay attention, is wrong.
And so we learn, in watching, how long that is—8 minutes and 46 seconds—morally.
Skepticism and the Law
It’s hard to see any appreciable harm in what’s been proposed: laws banning police chokeholds, dismantling “qualified immunity,” creating shared and public databases of complaints about police, banning “no-knock” warrants.
But last night I watched 16 Shots, the documentary about the murder of Laquan McDonald, in Chicago, Illinois, in 2014. And in that one story there are so many details—the false reports filed by all the officers on the scene, the badgering of eyewitnesses to conform to the police narrative, the role played by the F.O.P. in pushing out that police narrative, the video footage of police officers erasing security video at a nearby Burger King, the reluctance of the state prosecutor to bring charges, the judge’s sentence, which seemed to overturn the will of the jury—that underline just how much larger than any one police practice the problem is.
If the problem were simply individuals doing the wrong thing, small legal fixes might be enough.
But it seems it’s a system-wide failure.
At a press conference on June 10, 2020, Minneapolis Police Chief Medaria Arradando was asked for his reaction to the “rookie cop” defense put forward by a lawyer for one of the officers charged with aiding and abetting the murder of George Floyd. Arradando responds first as a policy-maker and policy-enforcer, as someone who thinks about the effects of the rules, but then he admits the inherent limits of policy and law. Some moments ask us to transcend the rules, Arrandando suggests, and heed the demands of some larger moral imperative:
“The policies that I put out for our department, those policies are not guided in years of service. I don’t put policies out to say that you should only react or respond if you’re a two-year member or a five-year member or a 10-year member. And if policies or subculture get in the way, then I expect and I demand one’s humanity to rise above that.”
In other words, there are rules—and then there are Rules.
I’m reminded of Hannah Arendt’s Eichmann in Jersualem: A Report on the Banality of Evil (1963).
Adolf Eichmann didn’t make substantive decisions. He was an officer who followed the orders of his superiors and the laws of his country. He hadn’t personally turned on any gas chambers; he hadn’t pulled any triggers.
So why was he kidnapped by Mossad in Argentina and brought to Israel for a four-month trial in the early 1960s? And why did he hang?
Eichmann was responsible for putting people on trains. He directed the trains where to go. In short, he was the person responsible for transporting the Jews of Europe to their deaths.
At his trial in Jerusalem, for crimes against the Jewish people, the prosecution promised to demonstrate that Eichmann was a “perverted sadist” and a “the most abnormal monster the world had ever seen.” The prosecution never really made its case. By Arendt’s account, Eichmann was unexceptional. His speech was plagued by clichés. His memory on matters of political significance was vague, but he could recall with mind-numbing specificity the history of his own career trajectory. He claimed to have once led his life according to Immanuel Kant’s “categorical imperative,” and then, when prompted by a lawyer, gave a passingly good summary of it. He knew what a moral compass was and what it could look like; his was just completely broken. “The trouble with Eichmann,” Arendt writes, “was precisely that there were so many like him, and the many were neither perverted nor sadistic but were, and still are, terribly and terrifyingly normal.”
I’m not comparing anyone to Eichmann. I bring him up not to malign the diverse and well-intentioned 800,000 individuals who work as police in the United States. The question is not so much what we do with any one individual who fails the community; the question is what do we do with immoral event patterns.
Part of what we’re waking up to as a nation is the possibility that we have a set of terrible and terrifyingly normal rules for the police to follow. And perhaps those terrible and terrifyingly normal rules deserve another look.
Imagine your first-grader brought home a note from the school principal:
The following is our disciplinary policy, as it relates to the use of deadly force, at Horace Mann Elementary School:
If your child poses no immediate threat to the teacher, administrators, and students, we view the possible harm—that they’ll continue to “act up,” for instance—resulting from not killing him/her/they does not justify the use of deadly force. We just thought you should know.
Undoubtedly, it is quite unfortunate when a child who is acting poorly eludes our punishing grasp, but the fact that a principal or teacher arrives a little late or has a hurt foot and so isn’t able to effectively run after and apprehend your misbehaving child does not always justify killing your child. Therefore, faculty and staff at Horace Mann Elementary may not seize an unarmed, nondangerous child by shooting him/her/they dead.
However, if the teacher or principal has reasonable grounds to believe that your child poses a threat of serious physical harm, either to the teacher or to others, it is our policy to prevent that child’s escape by using deadly force. Thus, if your child threatens the teacher with a weapon, including “pointy” scissors, or if there is reason to believe that he/she/they has broken a rule of the school involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape. Whenever possible, before shooting your child, a verbal warning will be given.
The above merely copies the language, replacing some terms of law enforcement with the language of schools, of the majority opinion, written by Byron White, in Tennessee v. Garner (1985).
And I suppose the rule generally seems apt if, say, a man is shooting up a country music concert from the 32nd floor of a nearby hotel. We expect the police to use deadly force to stop him. We expect them to kill when they are absolutely certain that killing prevents the deaths of others.
But, of course, what we’ve seen, over and over, are these cases where deadly force is used when it is passingly “reasonable” but perhaps not absolutely necessary.
In 2016, after some high-profile killings of citizens by police, the use-of-force policy for the Minneapolis Police Department was updated. It now mentions the “sanctity of life and the protection of the public” and lists some de-escalation techniques, but most of the text of the policy reflects Tennessee v. Garner (1985) and Graham v. Connor (1989). The police are supposed to have an objectively reasonable reason for seizing your liberty. And then, once they’ve decided to do that, if you seem to pose a threat to their safety, or the safety of others, they can use deadly force to stop you. Minneapolis isn’t really unique; not much has changed in use-of-force police policies nationally in the past 30 years.
Where I live, in Missouri, the state legislature didn’t bother updating its use-of-force law, in light of the Tennessee v. Garner (1985) decision, in 1985. They waited. They didn’t update their law, to conform to what the United States Supreme Court had handed down, in 1986 either. Or any time in the 1980s. Or the 1990s. Or the 2000s. It wasn’t until 2017, in the aftermath of the Michael Brown killing by a police officer in a St. Louis suburb, that Missouri finally outlawed police killing fleeing suspects, such as Edward Garner, age 15, who was unarmed, hadn’t physically harmed anyone, and had stolen a purse with $10 inside.
So states can drag their feet. And, of course, as we know, what a police officer actually does in the moment, to you or someone you love, matters more to us all than what a court decides about that event’s constitutionality years later. (Edward Garner was killed by police when he scaled a chain-link fence in 1974; I have a hunch that Byron White’s use of the phrase “the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect” relates to that particular police officer’s unwillingness or inability to climb the six-foot fence and his choice to shoot Edward Garner in the back with a hollow-point bullet instead.) And, of course, the government exercises enormous discretion in which laws it enforces, even ones “enshrined in the Constitution,” which is sometimes a blessing and is often a curse. And, of course, there’s the problem of missing the forest for the trees: revising the law to match the particulars of the act that, though legal at the time, seems like it shouldn’t be legal anymore.
(And we should not forget that part of the defense put forward by the four officers charged in the Rodney King assault was that they had to resort to kicking and beating him because a chokehold that they preferred was no longer allowed in Los Angeles, because it had caused disproportionate deaths among African-American suspects.)
So many may be cynical about the law. I get it.
But I also think, if ever there was a time when cynicism about the law should be tempered, it’s now. Because something incredible and rare is happening.
Because there’s something that matters more than the law: None of the obstacles and pitfalls and flaws in our system is as powerful, luckily for us in this moment, as the popular will.
Coalition of the Conscience
A couple weeks before he was murdered, Martin Luther King, Jr., gave a speech in which he acknowledged his frustrations. The landmark civil rights legislation he’d championed had become law in the mid-1960s, and then, over the next few years, the movement King helped to shepherd lost momentum. “The problem can only be solved when there is a kind of coalition of conscience,” he said. “Now I am not sure if we have that many consciences left. Too many have gone to sleep.”
That was more than 50 years ago, and the baton has been passed and passed again, and the awakening over those decades has been slow and uneven.
But many consciences are now awake. Recent polling from Pew Research Center and Civiqs show a majority of Americans, of all races, now support the Black Lives Matter movement. (Outright opposition is also relatively weak; the Civiqs survey shows opposition above 50 percent—and just barely—in only one state, Wyoming.)
And the recent protests against police brutality and systemic racism have been geographically diverse, bipartisan, and multiracial. Nearly one-fifth of the protesters identify themselves as Republicans. Roughly half of Black Lives Matter protesters across the country are white, and in some places the percentage of white protesters is much higher. It doesn’t mean everything, but it certainly doesn’t mean nothing, that Mitt Romney marched.
What accounts for this emerging coalition of conscience?
Ta-Nehisi Coates points to the symbolic importance of the Obama presidency:
“Many more people can see themselves in George Floyd. People have a living memory of a black President. So, yes, we need real policy change, but I’ve long believed that if you can’t see the humanity in your midst, or under your knee, then it doesn’t matter. Now you have more and more people who actually see black people as human.”
Elizabeth Alexander agrees, and she also posits that consciousness-raising cultural studies in academia, and racial integration in universities, have made a difference:
“I think all roads lead to the effects of black studies. We have 50 years of black studies, ethnic studies, L.G.B.T. studies, women’s studies, and integration in higher education in larger numbers. And we’ve done the hard work of taking people through black history via the culture. So I know that [academics] have sent a lot of white students into the world with a very powerful consciousness. And then if you also think about a generation growing up only seeing the Obama presidency, and by that, I also mean the pictures and visual symbolism of that man as a leader and that family and those daughters as American daughters for eight years as normative and as beautiful.”
These two factors—increased empathy of the white population and the “powerful consciousness” of the society as a whole—certainly seem like foundational, necessary ingredients. The ideological shift wouldn’t have happened without them.
But universities have paid more attention to diversity and cultural studies for decades, and Obama’s presidency ended nearly 4 years ago.
So, why now? What was the final ingredient?
The answer I find most convincing, strangely enough, is COVID-19.
According to the poll from Civiqs, the increase in support for Black Lives Matter has been most pronounced since the murder of George Floyd, for sure. But that trend line, which had been flat over the last few years, first began moving upward in late April 2020, a month before George Floyd was murdered. The increase in support for the movement coincided with a rash of news articles about the disproportionate racial outcomes of the COVID-19 pandemic, including a report from the CDC. That upward trajectory got some propulsion upon the release of a video of the murder of Ahmaud Arbery in Georgia. And then, of course, it accelerated further with the widespread viewing of the video of the murder of George Floyd.
In “The Ethic of Jesus and the Social Problem” (1932), Reinhold Niebuhr defines “imaginative justice” as “love that begins by espousing the rights of the other rather than the self.”
Might that be what’s happening now, an uptick in imaginative justice? A surge in selflessness?
Perhaps the quarantine and all the changes that the spring of 2020 brought to our professional and social and educational lives had a focusing effect. Perhaps thinking for so many weeks about what was “essential” inspired many to act on their beliefs, to make a sign and go to a march, not just root quietly from the sidelines. Perhaps re-imagining how we do the most banal tasks—going to the grocery store, for instance—made us a little more aware of how we approach our lives, and the lives of others, in both large and small ways. Perhaps being furloughed or unemployed or underemployed or differently employed made us able to pay attention in a sustained and rare way.
Perhaps COVID-19 helped us to be a little more selfless, to reconnect us with parts of our humanity that usually get crowded out.
Perhaps we also thought more intentionally about the role that government authorities play in our lives.
Perhaps many young people—their internships canceled, the hours at the local pub scaled back—simply have more time to march, and when the young people have more time to march the parents and grandparents of the young people have more incentive to think about what’s being marched for and who is doing the marching.
And perhaps the possibility of radical structural change doesn’t seem so, well, radical anymore. The past few months taught many of us that we had the resiliency to weather what might have once seemed like extreme changes to the way we live.
Is it possible that the pandemic, for many of us, rejiggered our channels for agape?
Maybe something about the previous months of dread and anxiety, of hope and wistfulness, of families saying their forever goodbyes to their grandmothers over FaceTime, of men crying publicly about not being able to buy grass seed, of schools and businesses and lives being upended, of a daily death count, of a daily infection count, of worrying about people in nursing homes, of worrying about people who work in meat packing plants, of shared experience, of community, of feeling more isolated and, strangely, sometimes, more connected—maybe something in our bizarre, unprecedented, lonely pandemic experience helped us to better see our way toward transmuting moral outrage into love.
The Usual Defense
Here’s a sentence from President Trump’s recent executive order on policing: “Law enforcement officers provide the essential protection that all Americans require to raise their families and lead productive lives.”
It’s hard to believe this sentence when, lately, I’ve mostly seen police tear gassing and pepper spraying peaceful protesters because they’re offended by their umbrellas and pushing over old men.
Even if the police hadn’t been recently engaged in our era's most embarrassingly bad P.R. campaign, the vast geographic diversity of the country, among other factors, makes me skeptical that my productive life and my family’s existence depends on the steady state police. Just as they are. No changes necessary.
And then, of course, there’s not much evidence supporting the argument, also put forward in the President’s executive order, that the problems we’ve seen are simply one-off mistakes or examples of “misconduct.”
The deck is stacked the other way. There’s lots of evidence of real and pervasive problems with policing in the United States.
Here are some of the facts:
The police, who drive and walk and bike the streets of every city and town in the United States have roughly 800,000 members who have been authorized by the public to do things that no one else can do: among them, deprive people of their liberty (when “reasonable”) and physically harm them (when “reasonable”). The physical harm the police are authorized to inflict sometimes leads to death.
Does it happen very often, that the police kill people? Eight percent of all homicides against men, across all those cities and all those towns in a vast nation, are committed by the police. So, yes.
Over the course of their lives, African-American men have a 1 in 1,000 probability of being killed by the police.
What about dangers to police? Is it dangerous to be a police officer? Sure. On average 64 police officers are shot and killed each year.
So is it more dangerous to encounter the police than to be the police? Yes. Recently, across the country, the police have been responsible for shooting and killing about 1,000 people each year. (Some of the numbers take a little work to unearth, but Lynne Peeples, writing in Scientific American, estimates police shoot, but do not kill, an additional 2,000 people annually.)
If you’re a police officer, it’s about 15 times more likely that you will shoot and kill someone than that you will be shot and killed yourself. If you’re a police officer, it’s about three times more likely that you’ll die by suicide than by homicide.
Is this inevitable, in a country like ours? In a large, wealthy nation, are these problems simply the price we have to pay? Probably not. Police-caused fatal encounters are happening in the United States at a rate that far exceeds any of our international peers.
Nevertheless, the police are essential, right? For public safety? To prevent and solve crime? Well, it’s complicated. While it’s likely true that the complete absence of any government-sanctioned law enforcement personnel would make certain kinds of crimes more prevalent—and various criminals might be, you know, emboldened—it’s also true that the police only make arrests in 35 to 60 percent of the cases of aggravated assault, rape, and murder. For other crimes, the “clear rate” is much lower.
So, the problems are real. And I haven’t even broached domestic violence, off-duty assaults, and other crimes committed by police officers at troublingly high rates.
And there is a problem that is so significant, so prevalent, and, to be honest, so strange (given the job and its authorities) that I am frankly embarrassed I’ve only found time to think about it much in the past month: The police are afraid.
Each video, each news story, each fatal encounter confirms this discomfiting fact: These unelected government employees, who “serve and protect” us, are plagued by fear.
They shoot people out of fear. They’re afraid. They inject them with ketamine. They’re afraid. They choke them. They’re surprised and fearful of how strong someone is. They’re afraid of how a person is moving, so they shoot them. They confuse someone pulling up some unbelted shorts for reaching into a waistband, which makes them afraid. They’ve heard there’s someone with a gun in a park or a Wal-Mart, and so they shoot before they even have time to ascertain if the gun is a gun that shoots bullets or one that shoots BBs. They’re unlike the rest of us in their fear, perhaps, because they’re often at their most fearful, it seems, when a person is running away from them or, sometimes, walking away.
In 1999, four grown men with guns and police training (but not uniforms; they were in regular clothes) saw 23-year-old Amadou Diallo’s hands in his pockets and were so fearful that he was reaching for a gun (it was a wallet, most likely being retrieved so he could show them his ID, if he thought they were police, or to hand it over, if he thought they were armed robbers) they fired 41 bullets in his direction. Nineteen bullets struck him. Their fear was spun out of the thinnest suspicions; Diallo was in the vestibule of his apartment building and was observed to be “peering” and “slinking.” And their fear created a web of misperceptions, a fictional story with a surprising amount of invented detail for having been conjured in seconds: that Diallo was wearing a bullet-proof vest, that he was likely to take one of the officers hostage, that he had shot one of the police officers who had actually, while firing his weapon wildly, tripped and fell, and that he was a “homicidal maniac.”
They shot him because they were afraid of him. Not actual him, of course, but the fictional him that they’d all dreamt up together but without talking about it.
Similarly, in 2014, a police officer in Ferguson, Missouri, was so afraid of 18-year-old Michael Brown—trying to fend him off was “like a five-year-old holding on to Hulk Hogan”—that he shot him once in the hand and then, when Brown ran away, the officer got out of his car to keep shooting him until he died.
The officer’s story, refuted by various eyewitnesses, was that Brown punched him and then, after being shot at least once and briefly running away, turned and charged at him.
What was so scary about Michael Brown, according to the officer, was his “intense face”: “I told him to get back, and he was just staring at me, almost like to intimidate me or to overpower me.” (Overpower him, with a facial expression?) Once the officer shot Brown, the victim showed again an “intense, aggressive face.” The officer said, “the only way [to] describe it—it looks like a demon.” (The officer seems shocked that a person who has been shot with a gun might do something other than politely smile.) Brown runs away, but the officer gets out of his car to pursue him. And then, firing his gun at a human being who has, at worst, punched a police officer in the face, the officer is able to absorb/create in this moment an extraordinary amount of detail about the young man’s seemingly super-human capabilities:
“At this point it looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him . . . . And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.”
What he’s saying is ridiculous—he had to shoot Brown because he had the appearance of someone that was going to be impervious to gun shots—but just this sort of ridiculousness is often part, oddly enough, of the usual defense: immense fear.
This officer, too, conjured a story. As he told George Stephanopoulos, the officer was worried that if Brown punched him one more time, that punch would cause him to lose consciousness and then Brown would take his gun and then shoot and kill him.
What facts did he base this story on? That he’d been punched once or twice and the punches hurt. Apparently that, combined with the “demon”-like face, caused him to fear for his life. The rest of the narrative was born from that fear.
Was the officer angry? He says no. “The only emotion I ever felt was fear,” the officer says, “and then it was survival and training.”
The police officers who beat and kicked Rodney King in Los Angeles, California, in 1991, certainly appear, in the bystander video, to be experiencing a sadistic fugue. But they later explained in court they were acting out of “fear and frustration, not pleasure in inflicting injury.” King, they all worried simultaneously and without ever talking about it, looked like someone who was on PCP and had spent years bulking up in prison and seemed superhumanly unaffected by a Taser. They were hitting him repeatedly with metal batons and kicking him, they said, because he was continuing to move. Adjusting one’s body to attempt to not receive the painful blows seemed evidence in support of their narrative that King, too, possessed some super-human strength. Either way, the officers decided the most important thing was to beat him until he wasn’t moving anymore.
In defending one of the police officers who had kicked Rodney King, a lawyer referred to the kick as “departmentally approved.” He’d kicked another human being in the way that had met the approval of the police department, the one he worked for. It was, you know, okay because it was, you know, taught. Just part of the training.
The only emotion I ever felt was fear, and then it was survival and training.
The Stars Align
In Federalist No. 84, Alexander Hamilton argues against a Bill of Rights. Enumerating the rights of individuals, as part of a constitution of government, he thought, would be “dangerous.”
This has always struck me as odd.
Growing up and learning about U.S. government and its history, this idea was difficult to wrap my mind around. How could saying something was prevented by the government enable that same government to overstep its bounds and be more tyrannical?
I’m finally starting to understand.
Hamilton’s reasoning is grounded in history. The various bills of rights in European monarchies were usually “reservations of rights not surrendered to the prince.” Essentially, they were compromises. The monarch took what he wanted, and the people got the scraps.
Hamilton didn’t think we needed to compromise up front. He was also perhaps a bit naïve, a bit idealistic. He believed that the very system of government he’d helped to design would be so democratic, so responsive to and powered by the people, that these rights were a given. In the United States, with both national and state “constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants,” the people would “have no need of particular reservations” of rights because, in their very form of government, they “surrender nothing” and “retain everything.”
(A quick aside: I love that government officials, in Hamilton’s phrasing, are “servants.” That feels somehow both antiquated and aspirational.)
But as naïve as he might have been about democratic power, he was astute about power more generally. By including a bill of rights, Hamilton worried, we were implicitly handing over power to the government we hadn’t expressly given it in the constitution itself. The Bill of Rights would provide the government with abstract ideas—such as “liberty of the press”—in need of further definition. Who would take on that work of definition? The government. Hamilton believed this would give our government the “utmost latitude for evasion.”
Hamilton thought individual liberties were ensured not through “fine declarations . . . inserted in any constitution” but rather through “public opinion” as expressed through the “general spirit of the people and of the government.”
In a democratic republic, and given the inherent dynamics of power (i.e. those who have it don’t usually like giving it up), the law by itself would never be enough.
Simply having the First Amendment, Hamilton could have predicted, wouldn’t stop Congress from passing the Sedition Act, which outlawed writing about the federal government in a “scandalous” way. It really said that: “scandalous.” It didn’t stop the U.S. military, under Herbert Hoover, from shooting and clearing out (with bullets and tear gas and fire) a group of World War I veterans, known as the “Bonus Army,” who were camped out in Washington, D.C., to petition their government for a redress of grievances. (The Depression had hit; they wanted their bonuses sooner rather than later.) Hoover was annoyed at them, so, you know, First Amendment suspended—and a fire to your tent.
Scan U.S. history, and you’ll see it, again and again: rights supposedly enshrined in the Constitution being elided through the passage of laws and by the efforts of law enforcement and through the criminal justice system. Congress, presidents, governors, state legislators, mayors, city councils, police—not all the time but enough—seeking “the utmost latitude for evasion.” The law says one thing, but the reality on the ground, as wielded by those with power, says another.
In “Freedom of the Park” (1945), George Orwell, in writing about the uneven application of a law against vendors selling newspapers in London’s Hyde Park (the politically leftist ones got fined and jailed, while all others were left alone), concludes that “the relative freedom which we enjoy depends on public opinion.”
We may point the finger at the law, or even law enforcement (“the essential protection that all Americans require to raise their families and lead productive lives”), as the source of our freedoms, but in reality the source is us. In a liberal democracy, we have freedom of speech, or freedom from discriminatory policing, or freedom from unreasonable searches and seizures, when we have it, because enough of us want it.
This is so, so true—and it hasn’t always been a good thing, for everyone. Scan the history of the United States, and you’ll find many instances where public opinion and the law and the relative darkness aligned in a way that harmed citizens. For instance, the Thirteenth Amendment, which outlawed slavery, didn’t stop Alabama from passing a law that made it illegal to be unemployed, which then allowed for the arrest of Green Cottenham, one of likely hundreds of thousands arrested for “vagrancy,” which then allowed Cottenham, nearly 60 years after the Civil War, to be sold to U.S. Steel, a practice that wasn’t widely written about by journalists or acknowledged by governments or the public at large, who then paid his court costs so that it could supervise his prison term as a forced laborer in a coal mine (see David A. Blackmon’s Slavery By Another Name).
But maybe right now the stars have aligned.
We’ve more light. There are more cameras. More videos. More brave bystanders.
There’s been some initial, stutter-step movements on the law.
Most importantly: The relative freedom we enjoy depends on public opinion.
And public opinion is moving in the right direction: 76 percent of Americans, up from just over half of the population a few years ago, say that racism is a significant problem in the United States. A recent poll shows a majority of Americans believe police are more likely to use excessive force against black citizens than white citizens.
And lots and lots of people, if you haven’t noticed, are still marching in the streets, which, so far at least, has only amplified and made more potent and clear the popular will.
When the Servant Isn't Serving the People
There’s a moment in the 2018 film Say Her Name: The Life and Death of Sandra Bland that I can’t stop thinking about. A police officer has pulled over 28-year-old Sandra Bland, on her way to the grocery store, for failing to signal before changing lanes. The dashcam records their interaction.
The officer approaches the car intending, he says later, to give her a warning. He must notice something in Bland’s demeanor, and so he asks her, “You okay?”
She responds, “I’m waiting on you.”
He says, “Well, you seem very irritated.”
She says that she is, in fact, irritated. She explains how she was changing lanes to get out of his way. He’d been following her at high speed. She thought he wanted her to move over so he could pass. But then she gets pulled over, and now she’s getting a ticket. She’s frustrated. She’s venting.
The officer asks her, “Are you done?”
She replies that she is.
The officer takes a long beat.
He takes a long beat before asking her to put out her cigarette.
Sandra Bland says, “I’m in my car. Why do I have to put out my cigarette?”
The officer doesn’t take a beat here. He’s already decided, it seems, what he’s going to do: “Well you can step on out now.”
I realize, to many viewers, this is an insignificant detail in Sandra Bland’s story. This—the long beat where the officer is allowing himself to get annoyed at her for being irritated and then choosing to escalate a traffic stop into a violent confrontation—is not the sort of moment that excites internet sleuths. It doesn’t shed any light on whether her death, a few days later, while in police custody, was a suicide or a homicide.
But it’s the sort of moment we might need to pay attention to. Maybe it’s the sort of moment we can look to as we imagine how to reform our police. Maybe it’s the sort of moment that might yield some partial answers when we ask how much power we need to claw back.
Because it seems a moment, plain and simple, where a government servant isn’t serving the people.
Or think about Dethorne Graham, a man with Type 1 diabetes. He’d injected his insulin, and he was out of orange juice. He asked a friend to drive him to a convenience store. Graham runs inside and then quickly sees that the line’s too long. He leaves quickly. Another friend lives nearby; they’ll go there to find some juice. A police officer sees him enter and leave the store quickly and gets suspicious. He pulls the car over. While the police officer is on his radio, trying to figure out if the convenience store had in fact been robbed (it hadn’t), Graham becomes hypoglycemic. He gets out of the car and runs around the car two or three times. He eventually finds his way to a sidewalk, where he lays down. Police backup arrives, handcuff him, throw him onto the hood of the car. Graham’s friend tells the police officers that Graham's diabetic and that he’s gone into insulin shock. The officers curse at him and tell him that Graham is drunk. Graham is with it enough to tell them that he is, in fact, diabetic, and he’s got a decal in his wallet that says at much. They verbally abuse him and refuse to look at his wallet. By the end of the ordeal, he has a broken foot and an injured shoulder and lots of abrasions on his face. Eventually, they throw him headfirst into a police cruiser. Another friend shows up with some juice. The police officers, still not recognizing the man they’ve abused and arrested for no reason is experiencing a medical emergency, refuse to let the friend give Dethorne Graham some orange juice.
These are your police! And mine!
We only know the details of this man’s terrible and terrifyingly normal experience with police because he sued, and the case found its way to the Supreme Court. This was the case that resulted in the Graham v. Connor (1989) decision, which found that in interactions with the police the Fourth Amendment, which talks about “unreasonable searches and seizures,” was what was most relevant, not the bit about “cruel and unusual punishment” or “due process.” The decision defines the “objective reasonableness” standard “from the perspective of a reasonable officer on the scene.” Essentially, it gives police a lot of leeway in how they treat the people they serve.
But for a moment I just want to think about the man who was plucked from his freedom for a few minutes and was terribly treated: broken foot, bum shoulder, no juice, a persistent ringing in his ears, dangerous hypoglycemia.
And it was just part of the society we live in, the rules we’ve chosen for ourselves, because the police’s suspicions were reasonable. And because he wasn't acting compliant (because his body was trying to die), they had further rights to rough him up a bit while they arrested him.
In short, who needs dangerous criminals with police like this?
Part of what many of us have realized, the more we read and learn about the experiences others have had with the police, is that we should have all been expecting and demanding more a long time ago.
And what to do about the police is the most pressing question underneath the real question.
The real question, of course, is how we achieve our country.
Spirit of Justice Transmuted Into Love
Everything we see is wrong.
It’s impossible to watch the video and imagine a context, an explanation, some additional clarification, in which anything we’re seeing is right.
That’s part of what 8 minutes and 46 seconds does.
Eight minutes and 46 seconds cancels the usual defense: immense fear of imminent danger or death.
Our society also gives police officers an allowance, which the Supreme Court, in Graham v. Connor (1989) recognizes: “the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
Eight minutes and 46 seconds cancels the societal allowance.
Try explaining it to your children. Try explaining it to anyone you love under the age of, say, 12.
Try explaining that a man was slowly murdered in the street in Minneapolis by a police officer in uniform while the other police officers stood guard.
There’s only one way to end that story: It was wrong.
Or maybe: It was wrong, and we’re gonna try to do something about it.
And I suppose that’s why I can’t stop thinking about that moment, at 8:19:37 p.m. on Monday, May 25, 2020, when George Floyd was, however briefly, in a police car, handcuffed, on a street in Minneapolis.
I suppose that’s why I can’t stop thinking about that moment when the officer in Texas has pulled over Sandra Bland, and he could give his warning or write his ticket and go, but instead he takes that long beat.
In those moments, these police officers were, in some sense, following the rules. Or at least they weren’t wildly off the mark, in these moments before everything goes wrong, from the rules as they’ve been written and understood.
So those moments can teach us: We have allowed the rules to stray far afield of the Rules.
“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will,” John Stuart Mill writes in On Liberty (1859), “is to prevent harm to others.”
That’s the best starting point I can think of for where to move policing in this country.
The U.S. Constitution gives us a minimum. It shows us the lowest place the bar can be set. It doesn’t prevent us from moving the bar higher. It doesn’t prevent us from expecting and demanding more.
And it, like any law, can be changed.
The good news is that public sentiment is tending toward imaginative justice.
Popular opinion is currently marshaled behind the citizens marching in the streets; it’s marshaled behind those demanding justice; it’s marshaled behind those demanding equality under the law.
The people are demanding better laws. The people are demanding better leaders. The people are demanding better, more humane treatment from those to whom they’ve handed over part of their power.
The power of the police is derived, don’t forget, from us.
And wouldn’t we have given Dethorne Graham his orange juice?
And wouldn’t we have allowed Sandra Bland to vent for a few seconds without turning her life upside down, all because we were a little annoyed and didn't feel like we were being sufficiently respected?
And shouldn’t we not even know George Floyd’s name? Because he was in the car at 8:19:37 p.m on Monday, May 25, 2020, and that should have been the end of the story, by the rules and by the Rules.
Their power is derived from us. These are our servants who are breaking these bodies. So, it’s time to figure it out: how to claw some of that power back.
Those marching in the streets right now know as much, and so they have as their opening gambit, as Hamilton would have wanted it, this position: “surrender nothing” and “retain everything.”
And it’s working.
How else to explain Princeton University wanting, only now, to distance itself from Woodrow Wilson, who famously hosted a White House viewing of Birth of a Nation and instituted racial segregation in various government agencies.
How else to explain NASCAR banning the Confederate flag at its races.
How else to explain the near-immediate dismissal and filing of charges against the officer who shot Rayshard Brooks in Atlanta and then, we know now, kicked him while he lay on the ground.
How else to explain the resignation of three officers in Phoenix, Arizona, who were involved in the death of a man in their custody.
How else to explain the NFL reversing itself on player protests.
How else to explain the firing of three police officers, for racist comments captured on their dashcams, in North Carolina.
How else to explain the coalition of conscience that emerged in Mississippi demanding the state flag be replaced: “Lawmakers were confronted by a cascade of calls from inside and outside Mississippi,” Rick Rojas writes in The New York Times, “as opposition coalesced across racial, religious, partisan and cultural divides. Football and basketball coaches paraded through the Capitol urging a change. A varied assortment that included country music stars, the state’s black and white Baptist conventions, civil rights organizations and associations of bankers, manufacturers and librarians also indicated their opposition.”
Country music stars and bankers.
Religious leaders and coaches.
Some might call some of these moves symbolic, virtue signaling rather than real change. And if Princeton only loses Wilson’s name and calls it a day, then it’s only window dressing.
But, lest we forget, the first word in the definition of imaginative justice is love.
And in love there’s usually room for both the symbolic and the practical.
Maybe the symbolic gestures are a way to people talking and to get people listening. Maybe the symbolic gestures help get the country music stars and librarians in the same room. Maybe the symbolic gestures, like the COVID-19 pandemic, briefly dissolve the lines between the various cultural tribes and political parties. Maybe taking down a statue or two is good for solidarity. Maybe it helps the coalition of the conscience better understand its own contours. And then the conversation continues: What’s next?
If, eventually, the Mississippi Baptists, as well as the librarians and bankers, are willing to get the band back together, I’d like them to talk about moving toward Mill’s “harm principle” and leaving the “objective reasonableness” standard behind.
It took an embarrassingly long time, and a pandemic, to get us here. But I think we’re here now: What happens to us, to any of us, at the hands of the police, is all of our concern.
Our community is sick. We’re trying to make it well.
For Reinhold Niebuhr, love and justice are not synonyms. Rather, they’re stages of development. “The fight for justice in a society will always be a fight,” Niebuhr says. “But wherever the spirit of justice grows imaginative and is transmuted into love, a love in which the interests of the other are espoused, the struggle is transcended by just that much.”
When the rules don’t match the Rules, there’s a solution:
Keep demanding better, for others. Keep moving toward love. Keep focused on the interests of the other. Keep marching. Keep on.
Richard Sonnenmoser writes about fatherhood, music, pop culture, and politics. He's had fiction, poetry, and nonfiction published in Harvard Review, West Branch, Crab Orchard Review, Permafrost, Big Muddy, and others.