Disrupt J20: Solidarity Six Months Later

Six months ago today, a diverse collection of autonomous direct actions occurred in downtown Washington, DC, disrupting the Inauguration. Despite he fact that January 20th signified the arrival of the Trump presidency, the massive turnout across the city and country made it a beautiful day of collective struggle against hate, white supremacy, misogyny, and xenophobia. From across the country, leftists of all stripes came together to resist Donald Trump’s presidency in defense of women’s rights, indigenous sovereignty, black lives, peace, bodily autonomy, trans/queer lives, the climate, health care, reproductive rights, labor rights, and other causes. Thousands of people came to DC from near and far. There were dance parties and blockades and marches all day. We set the tone for resistance from day one.

While I was holding the line at 10th and E with a growing crew of radical feminists, I also got news that riot police had kettled the anti-capitalist antifascist march just a few blocks north of us. Several friends had been up there, and I had planned to join them if our blockade at the gate had been dispersed. Busy with our own aggressive cops and Trump supporters, I didn’t see video of cops indiscriminately pepper spraying crowds – including the elderly, disabled, and children – and using less lethal crowd control on penned protesters until I got home. It wasn’t until the next day that I heard that they had been denied food, water, or access to a bathroom for hours. It wasn’t until months later that news came out that several were stripped down and subjected to invasive searches, and have since sued MPD for using “rape as punishment.”

The two hundred individuals caught up in the kettle that day now face about 70 years in prison for protesting. There is little evidence of individual wrongdoing; and some lawyers have argued that the case has “fatal defects” since many are simply charged for associating with those who destroyed property. The case is a prime example of the type of unconstitutional mass arrests that MPD used to be known for, but have since abandoned thanks for community organizing, legal support, and expensive settlements – that is, until J20. In both their use of pepper spray, stingball grenades, allegedly tear gas and flashbangs too, and in their decision to mass arrest a city block of protesters – and anyone else who happened to be in the area – MPD violated its own policies and broke the last decade of crowd control precedent in the District. DC’s Office of Police Complaints issued a report  [pdf] in February citing concerns that MPD may have violated Standard Operating Procedure, and the City Council already appropriated funds to investigate MPD misconduct and abuses that will cost the city more than all damages from the protest itself, not to mention pending civil cases that could cost the city millions like past police misconduct settlements. Despite all of this, interim police chief Peter Newsham, who oversaw crowd control that day and has been implicated in the illegal kettling of proteters in 2002 at Pershing Park, was approved as police chief by DC City Council a few months later over the wishes of many in the DC community.

Beyond the police repression that day, the prosecutorial strategy has also been one that seeks to punish people for engaging in protest. Superseding indictments brought the total list of charges for most defendants to eight felonies including rioting, incitement, and conspiracy charges. These charges effectively argue that people can be held responsible for the actions of those around them, positing guilt by association just for being there. “Evidence” listed include the fact that people wore black clothing, covered their faces, chanted, and marched. Even journalists and legal observers have been charged (some, but not all, had their charges dropped). Such actions aren’t illegal, but the prosecution is trying to leverage them as evidence anyways, arguing that there exists a form of criminal protest rather than specific illegal acts. This is not new: Black Lives Matter and Standing Rock protesters have faced state repression, and the J20 case is just the most recent. There will be more: lawmakers in numerous states have proposed laws ratcheting up the punishment for nonviolent direct action, specifically targeting forms of protest that seek to disrupt the norm.

In the face of all of this, those involved in J20, and a growing network of support, are working to show the true meaning of solidarity. In conversations leading up to the day of action, organizers promised to provide legal support for those who got arrested. When the scale of arrests and felony charges became apparent, this legal support structure didn’t back down, it was amped up. Solidarity and mutual aid are at the core of what makes direct action possible, and in DC teams of people are attending status hearings at the courthouse, paying for transport and providing housing options for those who have to make multiple trips to DC. While the state tries to isolate individuals and intimidate them with decades in prison, people have got each other’s backs. You should have their backs too.

Ways that you can help:

  • Donate to the DC Legal Posse to help provide legal support and defray costs
  • Donate to local legal support funds
  • Keep the pressure on MPD by calling for investigations into police misconduct and abuse
  • If you’re in DC, provide housing for defendants or show up for court support
  • Support anti-fascist work in your community
  • Spread the word that protesting isn’t illegal, mass arrests are

Things that you should read, watch, or listen to:

Society Must Be Defended #readin

When I saw Paige West and J.C. Salyer’s call to mark January 20th with a read-in of lecture eleven of Michel Foucault’s Society Must Be Defended, I was excited to re-read the lecture in light of the right-wing ascendancy in U.S. politics. As West and Salyer note, this lecture in particular is a useful text now because “it demands we simultaneously consider the interplay of sovereign power, discipline, biopolitics, and concepts of security, and race.” I did my reading a little bit early, because I knew that I’d be busy on Friday, as a series of direct actions were being planned to disrupt the inaugural proceedings (and we were largely successful). This post is partially about Foucault and the read-in, and partially an initial foray into thinking through Friday’s events. More to come, I’m sure.

Foucault’s lecture is critical because of its close attention to biopolitics and sovereignty, something crucial to a number of the issues represented at the direct actions on Friday. As West and Salyer noted, this is a time when “the reaction to activism against persistent racism has been to more overtly perpetuate racism as political discourse, [and] we need to remember and re-think the role of racism as central to, rather than incidental to, the political and economic activities of the state.” Same with sexism, same with xenophobia, same with homophobia, same with Islamophobia. Many of these ideologies are part of the American state in general, of course, but they are all crucial and central building blocks of the current administration’s claim to power. Losing the popular vote by millions, Trump has no real mandate to govern. The only mandate he can lay claim to is a voting bloc built around white supremacists, misogynists, and nativists.

“Sexuality,” Foucault states, “exists at the point where body and population meet. And so it is a matter for discipline, but also a matter for regularization” (251-252). The rise of biopolitics and biopower brought about a new set of technologies that measured and quantified the population that needed to be regulated, in addition to marking the body that needed to be disciplined. Efforts to measure, maintain, and control reproduction and fertility were at the center of this in the late eighteenth century, and continue today as the struggle over the bodily autonomy of women is unfinished.

An important point that Foucault highlights, though, is how “the emergence of this biopower… inscribes [race] in the mechanism of the State. It is at this moment that racism is inscribed as the basic mechanism of power, as it is exercised in modern States” (254). This has roots in settler colonialism and the slave trade, and racism continues to be tied to the state now. The racial logic of biopower leads the state to wage war not against a political enemy but against a racial Other. “From this point on, war is about two things: it is not simply a matter of destroying a political adversary, but of destroying the enemy race, of destroying that [sort] of biological threat that those people over there represent to our race” (257), i.e. for white supremacists, not a war on terrorist organizations in specific locales but a war against Muslims everywhere, not an effort to reform immigration policies but a war to prevent particular races from entering this country, not a war on crime but a criminalizing of black life.

Reading this lecture before #j20, it became readily apparent that the commonalities between the various groups offended, affected, targeted, and attacked by Trump and his supporters lie in the biopolitical. In the first days of Trump’s administration, it is clear just how right those fears are. He has appointed white supremacists to senior government posts, including Customs and Border Protection. He has signed an executive order restricting abortion access that has serious impacts for women’s reproductive rights and health globally, and which promises to actually increase the number of unsafe abortions, in an effort to exert control over women’s bodies. He approved both the Keystone XL and Dakota Access pipelines (which he has stock in), while simultaneously instituting a blackout at the EPA and other agencies. His senior appointments promise to destroy our planet, eviscerate labor, and punish the press for holding his government accountable.

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These four people were at the center of a blockade of one of the entrances to the Trump inaugural parade. The Future is Feminist blockade lasted six and a half hours and was just one of over a dozen actions on Friday, January 20th.

On the day of his inauguration, we saw a coalition of activists stand in the way of Trump’s rule. Every single issue-based group involved had good reason to resist a Trump presidency. Women’s rights, black rights, indigenous rights, Muslim rights, and labor rights have been under attack from before the beginning. Climate, anti-war, and anti-police activists have been under attack as well. Certain forms of protest are being made illegal, meaning mobilization against the government will become more difficult. I’m sure I’ll have more to say about Friday, and I’m sure I’ll have more to say as we move into (and push against) this new government. But for now, the key takeaway is that all of these groups and more came together Friday to ensure that there is no smooth transition to an authoritarian regime, to show a refusal to acquiesce, to be ungovernable, to defend society with their bodies and their voices.

Intersections, on encountering police

When I lived in New Haven, a young man on a motor scooter crashed into my parked car at an intersection in the Wooster Square neighborhood. I was walking home at the time, and turned the corner as a police officer was writing up some notes. The officer asked if I knew the owner of the car, I said it was me, he told me that the “kid” was going up a one-way street in the wrong direction and, when he saw the officer, tried to speed away and lost control, crashing into my car. The officer told me that he had found drugs on the young man.

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An intersection in New Haven. (Google Maps)

I fidgeted a lot, worried about the man in the back of the police car. I tried to look at him from where I was standing, to see who he was, but I didn’t want him to feel like I was gawking. New Haven doesn’t have a history of good race relations or of good police conduct. I wanted him to feel my worry and my solidarity, but I wasn’t sure how to convey it. I wanted to ask the officer if I could not press charges, but I knew that neither possessing drugs nor driving the wrong way were crimes “against” me, but against the state. I wanted to ask the young man if there was anyone I could call for him, anybody I could tell about what happened. I was nervous around the officer; I did none of these things. I stood by as he continued talking.

As we were standing there, a middle-aged white woman driving by slowed down and rolled down her window. “THANK YOU THANK YOU THANK YOU!” she shouted at the officer. He waved at her. They might have talked for a moment. She drove away.

I was not thankful for the arrest of another one of New Haven’s black youth. The young man in the backseat of that squad car certainly wasn’t thankful either. But her grateful outpouring for the policing presence was probably enough for the three of us. This experience – the blind appreciation for policing the neighborhood – is ingrained in my memory.

The lived experiences of policing are so, so different depending on where you live or what you look like. The intersections of state and society are not the same for everyone. In every place I’ve lived in, I’ve seen this. SB 1070 in Arizona. Stop and frisk in New York. A one-way street in New Haven. The intersections at which police and everyday people meet, depending on the city, the neighborhood, the block, can be polar opposites.

*  *

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A street in Arizona. (Google Maps)

When I was a teenager, I was driving home from somewhere. A police car drove past me, and I saw it flip a dramatic U-turn in my rear view mirror. I drove slowly, trying to let him pass to whatever demanded his attention. He didn’t pass. I turned into my neighborhood, and he followed. I decided I would stay on a road with more traffic, and pulled over by the neighborhood mailbox instead of going to my house. The officer pulled over behind me. His lights weren’t on.

I hesitated. My parents – like many parents of sixteen-year-olds – had taught me what to do when pulled over by a police car, but parents don’t usually teach you what to do when an officer follows you for half a mile without turning the lights on and then pulls over behind you when you stop.

Trying to act casual, I got out of my car and I picked up the mail. I stood by my car. I think a few people drove by, but I don’t remember. I do remember wishing that my parents or one of my friends would just happen to be passing. Someone who knew me. I remember standing on the sidewalk, feeling vulnerable, immediately regretting that I was not still in my car. The police officer rolled down his window and looked at me like I might have something to say, but he remained silent.

“Is there a problem, officer?” I asked. I remember asking it like that because I think that’s what they say in movies. He gestured towards his laptop and told me he was checking to see if my car was stolen. He didn’t mention it matching a description or a recent call or similar plates or anything. After a pause, he said everything checked out, and he drove off. I lingered for a while before getting back in my car and driving home, unnerved.

That was before SB 1070, but police have been profiling long before it was law. (I grew up half-white, half-brown in a more-than-half-white town, county, state). This was before I had really come to realize how easily a man in a car with lights on top of it – even if the lights weren’t on – could make you feel like you had done something wrong, like you were in trouble, like you might not make it home. I learned quickly. I learned around the corner from my house. (And that was in a middle class, white neighborhood in which I wasn’t stopped, nor arrested, and no weapon was drawn on me – a huge sign of privilege in and of itself).

*  *

I often think about the guy with the scooter. I wish I had done more, not knowing exactly what more I could have done. Once I think about him, I begin to think about my own encounters with police, as a brown-skinned driver in Arizona, or as a protester in New York (another story, another time), and think about how they compare to my experiences with police when I was in a car accident, or when I needed directions downtown somewhere. I often think about how these situations shift, how much depends on so little. Every encounter depended on what intersection it happened at (and who was involved). Most of my encounters with police have involved no confrontation, they’ve been professional, and no harm was caused. But it’s the moments of unease that remain with me, and even my encounters have been remarkably unremarkable. I was followed once, and I saw someone get arrested. I was wrestled to the ground in a protest once, but I got away scared but relatively unscathed. But these moments are what I think of when I think of police. People remember their vulnerability more than any run-of-the-mill interaction.

I’m not a victim of police violence, that’s for sure. I’ve only ever been inconvenienced and a little unnerved. I’ve never been in the real danger that whole segments of our society know all too well. Policing happens everywhere, but it looks different. I’ve often thought about writing about these anecdotes, but I never know what to say about it all. I’m typing this now because I read about what happened to Steve Locke a month ago.

Locke is a professor in Boston, and he was stopped by police while getting lunch on his way to class because he fit the description of someone who broke into a nearby house. The description was essentially black-person-in-winter. The whole account is worth reading, but this excerpt is what got to me:

Something weird happens when you are on the street being detained by the police.  People look at you like you are a criminal.  The police are detaining you so clearly you must have done something, otherwise they wouldn’t have you.  No one made eye contact with me... An older white woman walked behind me and up to the second cop.  She turned and looked at me and then back at him.  “You guys sure are busy today.” I noticed a black woman further down the block.  She was small and concerned.  She was watching what was going on.  I focused on her red coat.  I slowed my breathing.  I looked at her from time to time. I thought: Don’t leave, sister. Please don’t leave.

The difference between the two passersby is a crucial gap in society. Those who feel protected and those who feel vulnerable. Those who admire police officers (and want to thank them blindly and profusely) and those who fear them. Those who are thankful that they can live their lives in safety because of those who serve and those who just want to live their lives, but can’t, for the same reason.

Experiences with law enforcement are different depending on the people and places involved. But the moments that stick – to me and to others – are those encounters tense with vulnerability and fear. Some, like me, know these moments from a rare experience thanks to our privilege. Many don’t know them at all. But a number of people also know these moments all too well.

This fundamental difference in how we live our lives is an obstacle to real change that can improve the lives of those on the other side of the law’s enforcement. I was nervous for the person in the backseat that day in New Haven, but what I was feeling was probably nothing compared to what he was dealing with. The woman who drove by knew nothing about the situation, but she blindly expressed gratefulness to the uniform standing next to me. These different perspectives, on Centre Street in Boston, on Hughes Place in New Haven, on every street in the country, are something that I can’t get out of my head. If we are going to be able to create a society where there is less police oppression of minority communities, we need to make an attempt to understand how those communities experience the police presence.

Straight to Court: The Case for Private Prosecutions

If there is one issue that has marked American society in the last year, it has been a lack of accountability for violence against people of color – especially by law enforcement. Men like Michael Brown, John Crawford III, and Eric Garner all died at the hands of police officers who were never even indicted, let alone tried and found guilty in a court of law. The rampant impunity that negligent police officers enjoy has been the rallying point for many protests and demonstrations since last summer.

The process from investigation to indictment to trial is usually not one that favors the alleged perpetrator, but mounting evidence shows that the system protects its own as multiple police officers escape accountability for actions both minor and egregious. In the United States, if anyone commits a crime, it is up to the state to hold them accountable – even if agents of the state are the ones who stand accused. This is part of a long tradition in which crimes are seen not only as crimes against a particular victim, but against the state and society itself. State prosecutors punish suspected criminals by defending the rule of law that binds our society together, not by merely seeking justice on behalf of victims.

This is one of the ideals on which our justice system rests, but in practice this turns out to be a legal version of “#AllLivesMatter” as the victim all but disappears in cases labeled “State v. Defendant,” leaving the quest for justice in the hands of a state attorney. These public prosecutors don’t always dole out justice evenly, however, and throughout history minority victims have faced huge obstacles in gaining any modicum of justice. Recently, in police killing after controversial police killing, news cameras have awaited announcements from county prosecutors and state attorneys who have decided not to file charges. More often than not, the state has failed to hold itself accountable.

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Black Lives Matter demonstrators in NYC last November.

This is not surprising. On top of the racial disparities of the Unites States criminal justice system, the fact is that prosecutors work alongside police departments on a regular basis, and as such we should not expect them to suddenly be willing to crack down on police violence. Prosecutors have tremendous power at the early stages of an investigation if they want an indictment, but recent history shows that this isn’t always the goal. St. Louis County Prosecuting Attorney Bob McCullough showed as much when he shepherded Darren Wilson’s case into non-existence and then reprimanded the media and demonstrators rather than make any attempt to discipline a police force responsible for preying on the residents of Ferguson.

Even in the rare instance that prosecutors do indict police officers, they face incredible obstacles and costs. When District Attorney Kari Brandenburg first began considering handing down indictments for two police officers for shooting and killing a homeless man in Albuquerque, police began investigating her for allegedly bribing witnesses related to an incident involving her son in an attempt to “destroy [her] career.” Later, when Brandenburg finally did issue the indictments, she immediately paid for it. The next day, when a prosecutor from her office went to investigate a different, unrelated murder, police denied her entry to the scene, citing a “conflict of interest.” Such blatant intimidation and brazen attempts to deny victims justice is only possible because police have so much power in American society and the U.S. criminal justice system.

In the face of such obstacles, we should expect most prosecutors to default to supporting police departments, regardless of the evidence or public opinion. Mass demonstrations, civil disobedience, petitions, speeches, and even a direct line to City Hall have failed to change the course of police impunity in New York as well as Ferguson. Very rarely are indictments handed down for police officers who kill people in the line of duty, and even more rarely are they found guilty.

In the absence of criminal indictments, the families of victims have tried to seek some semblance of justice in civil court.  Just in the last year, the relatives of Michael Brown, Tamir Rice, John Crawford III, Eric Garner, Ezell Ford, and many others have filed or considered filing civil suits or wrongful death claims against those responsible for their loved ones’ murders. However, while these lawsuits may win the families of victims some compensation for their loss, there is little done to actually hold their killers to account.

Protesters in Union Square this April.

Protesters in Union Square this April.

When civil suits are filed against police officers for excessive force or other forms of misconduct, the police officers themselves seldom pay. The penalty often doesn’t even come from the police department at all, but rather from the city’s municipal coffers. The Baltimore Sun released an investigative piece last September – spread widely in the aftermath of Freddie Gray’s murder in Baltimore this spring – that found that over one hundred people have won court settlements against the city’s police department in the last four years alone (this represents only one third of the 317 lawsuits filed against Baltimore police in the same time period). The city spent $5.7 million in pay outs in addition to $5.8 million in legal costs defending officers.

Little to none of this money comes from the police officers in question, however. According to the Baltimore Sun investigation, “an agreement between the city and police union guarantees that taxpayers will pay court damages” in cases in which officers were following department guidelines on the use of force, and “in such settlements, the city and the officers involved do not acknowledge any wrongdoing.” There is some degree of restitution, but no accountability and no incentive for police officers to change their behavior. From the police officers’ standpoint, even when found guilty, nothing changes.

Most recently, the City of New York reached a $5.9 million settlement with the family of Eric Garner in order to avoid a civil lawsuit. However, this money won’t come from the police department, and as a result will not give any disincentive to the NYPD – even though the officer who killed Garner, Daniel Pantaleo, did so using a chokehold maneuver banned by the department. Pantaleo remains unindicted and at his desk job, and other officers are well aware that there is no punishment for breaking the rules and killing unarmed civilians.

In a study [pdf] of such lawsuits across the country, legal scholar Joanna C. Schwartz found that “between 2006 and 2011, in forty-four of the seventy largest law enforcement agencies across the country, officers paid just .02% of the dollars awarded to plaintiffs in police misconduct suits. In thirty-seven small and mid-sized law enforcement agencies, officers never contributed to settlements or judgments.” In a summary of her findings, Schwartz states that during this five year time span:

Governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments— even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.

With such protections in place, filing civil suits against police officers only hurts the cities that employ them. While there is hope that such actions would encourage cities to discipline such officers and do more due diligence in police training, hiring, and other responsibilities, this isn’t always the case. In Baltimore, while some officers were forced to resign, many kept their jobs even after being found liable in court because the department’s internal investigation cleared them. Even the state judicial system was secondary to the police departments’ own institutions – this reinforces the idea that police are above the law in nearly every possible way.

If public prosecutors won’t indict officers, and city governments shield them from the costs of civil suits, how can they be held accountable?

In the case of Tamir Rice, the twelve-year-old boy shot in Cleveland for carrying a toy gun in a park, there may be an answer.  In early June, more than six months after Rice was killed by Officer Tim Loehmann, the Cuyahoga County Sherrif’s Department concluded its investigation and handed over its findings to county prosecutor Timothy J. McGinty, who will present the findings to a grand jury to determine whether or not to proceed with indictments.

While everyone else is awaiting the grand jury’s decision, community leaders and activists in Cleveland have taken the initiative and asked a judge to issue an arrest warrant. By doing this, these community leaders are trying to circumvent the process that we have all seen unravel in the cases of other victims of police violence, from Staten Island to Ferguson. According to the New York Times, “Ohio law allows anyone with ‘knowledge of the facts’ to file a court affidavit and ask a judge to issue an arrest warrant. If approved, the arrest would be followed by a public hearing, and community members said that was preferable to allowing prosecutors to make the decision in secret.”

This attempt to secure a private prosecution rather than one through the state prosecutor’s offices may allow Rice’s family to have more control over the indictment, and may force Officer Loehmann to actually face accountability – or at least public scrutiny. If the tactic yields any success at all, it will be an important step towards attaining justice and give hope to those struggling to end police impunity.

* *

Such private prosecutions are incredibly rare in the United States, but they can be found in other parts of the world. In fact, private prosecutions have played a critical role in modern history as the foundations on which the emerging international justice movement has been built. In her book The Justice Cascade, political scientist Kathryn Sikkink points to human rights prosecutions in Greece, Portugal, and Argentina as beginning the shift towards individual accountability for serious state crimes like torture – a shift we continue to see today on the international stage.

In Greece, the first human rights prosecutions were held after the right-wing government was replaced in 1974. Just a month after the transition, Alexandros Lykourezos, a Greek lawyer who had returned from exile, initiated private prosecutions against military government leaders for treason for overthrowing the democratic government seven years prior. He was followed by others who filed charges against officials for torture and for the murder of students in the Athens Polytechnic uprising. According to Sikkink, “the private prosecutions both forced the government’s hand and relieved it of the burden of having to initiate prosecutions itself.” This brought about justice even in the face of government officials who did not want to focus on accountability for their predecessors.

Soon after, Argentina tried the leaders of the right-wing government that had tortured, murdered, and disappeared thousands of leftists and alleged communists in its Dirty War. Just two years after the junta stepped down in 1983, President Raúl Alfonsín’s government prosecuted several junta leaders. But it was everyday citizens and their use of private prosecutions that charged almost three hundred military officers for their actions during the authoritarian years.

When the expansion of accountability led to the attempted Easter Coup in 1987, Alfonsín issued amnesties for members of the junta to satisfy powerful criminals and prevent a return to the dark years of military rule. The strength of the military had forced the government to step back through its use of force and intimidation. Years later, however, the citizens of Argentina grew tired of impunity and once again used private prosecutions to find ways to hold torturers and murderers accountable.

Photos of those disappeared by the military junta commemorate the Dirty War in Argentina. (Photo by Pablo Flores, via Flickr)

Photos of those disappeared by the military junta commemorate the Dirty War in Argentina. (Photo by Pablo Flores, via Flickr)

Led by the Madres de Plaza de Mayo, an association of mothers and grandmothers whose children had been kidnapped and disappeared by the military junta, civilians began to push for true accountability in Argentina. In addition to torture and murder, there were many cases in which murdered communists lost their children, who were given away to military families to be raised away from “subversive” influence. The mothers’ association argued that the guilty military officials had never been charged with abducting children, and as a result had never been granted amnesty for such acts. After a decade of state-sanctioned impunity, the authoritarian leaders were back in the dock thanks not to the government’s prosecutors but to citizens determined to see justice carried out.

In these countries, as in Cleveland, private prosecutions served as a channel through which victims can seek not only compensation for their loss but true justice in the courtroom. As Sikkink states, “in a judicial system with strong private prosecution provisions, like that in Argentina, victims can insist that a prosecution continue, even when the state prosecutor would like it dropped.” In Cleveland, the Reverend Jawanza K. Colvin, a pastor and one of the community leaders bringing forth the charges, stated that “as citizens we are taking this matter and the matter of justice into our hands.” Walter Madison, a lawyer for Tamir Rice’s family, explained that “here we are taking some control of the process as citizens.” This is a democratic effort to do what democratically elected governments cannot – rein in police violence by ending impunity.

Just as private prosecutions helped victims find justice for torture and murder under right-wing authoritarian governments in southern Europe and South America, private prosecutions offer a new avenue to accountability for victims of police violence, among other prevalent crimes – especially for the more vulnerable in our society. While perhaps different than a state campaign of torture and murder, police violence in America is an issue with a long history and tragic consequences for America’s minorities. To many people of color, the difference between the two issues is probably not very big. For this reason, the actions of activists in Greece and Argentina are more than a sufficient parallel to efforts to hold police accountable for their actions. Private prosecutions are the link that ties them together.

* *

This method of bypassing the state is not new, but it is novel. As Noah Feldman explains, an Ohio state appellate court ruled that private prosecutions were legal in 1957, and in 1960 a state law was passed codifying the practice.

Feldman begins his analysis feeling uneasy about whether we should applaud such actions or not. “The law… would tend in the long run to give an advantage to families with greater means to greater political clout. They, after all, would have the resources to collect affidavits and go to court,” he says. “Tamir Rice’s family has that capacity because this case attracted national attention and the help of clergy and civil-rights leaders. But the families of other, less heralded victims might not be so fortunate.”

Feldman is right that our society is unequal, and that we shouldn’t expect a provision such as private prosecutions to be any different. As much as private prosecutions would give the victims of police violence, rape, and illegal foreclosures a chance to put cops, rapists, and bankers in jail, those in power would also have yet another tool which they could use to discipline the vulnerable. But we shouldn’t convince ourselves that they don’t already do this. The nation’s rich and powerful already have all the tools – one of which is the state – on their side. That’s why police impunity, rape culture, and unregulated capitalism are the norm and accountability for their perpetrators is the exception.

If we can bypass the state in these early stages, however, we could at least remove one part of the system that protects the powerful and ignores the downtrodden. Sure, those with the backing of executive boards and police unions would still have the best lawyers, but a public that was committed to accountability could rally behind victims of our society’s major ailments – inequality, racism, sexism. Private prosecutions could address issues of structural violence by indicting those responsible for carrying out direct violence and forcing the issue to be discussed in the open.

Despite this worry, Feldman closes his editorial by saying that “prosecutors’ offices are always going to be tempted to go easy on the police with whom they must work. Ohio’s law deserves to be copied – not just by a few jurisdictions, but by all.” Indeed, private prosecutions should be an option for the most underprivileged in our society to seek justice.

In the weeks and months that follow, Cuyahoga County’s justice system will be the next battleground for the struggle to hold police accountable. But whether County Prosecutor McGinty’s grand jury finds reason to indict officer Loehmann or not, the people have spoken, and they have asked a judge to issue indictments regardless. Just like in other countries plagued by state violence of one form or another in history, Cleveland now has a chance to move past impunity and towards real accountability.

The Right Kind of Victim

Earlier today a friend and colleague argued that, although police violence and race were important issues that deserved a public conversation a la Ferguson, Mike Brown wasn’t the “right” kind of person to be the locus of this conversation. This person cited some stuff about Darren Wilson’s innocence – stuff I disagreed with, but which is not what I want to talk about here. Instead, he referenced the case of Tamir Rice – the boy who was shot for carrying a toy gun literally the moment that police arrived on the scene, and was subsequently refused care by the officers and was later pronounced dead. There is video of the police misconduct. The victim clearly wasn’t charging the officers. This is where to organize protests.

Hours later, I saw news that Eric Garner’s murderer was also cleared by a grand jury. There is video of Officer Daniel Pantaleo putting Garner in an illegal chokehold. There is proof of police misconduct. The coroner ruled it a homicide. And the police officer won’t even stand trial.

Earlier today, I argued that – regardless of what one thought about Mike Brown’s death – the organizing and protests should continue. If you believe that police violence is a problem and black lives matter, you should be in the streets no matter what. Because the problem of police violence is a national crisis.

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When protesters tried to shut down New York City two weeks ago, it was as much about the injustice of the Ferguson grand jury as it was about the impending Staten Island one. It was also about Tamir Rice. And Akai Gurley. And numerous other men of color killed by police who are sworn to protect.

When we look for the right kind of victim, we will always be waiting. The anger at racist police violence has reached its breaking point, and there shouldn’t be any discussion about the right kind of victim. Victims are victims, and we need to organize now – before there are more.

When Rosa Parks was arrested for sitting on a bus, she galvanized a movement against segregated buses. But Claudette Colvin should have galvanized the same movement, but she wasn’t the “right kind of victim.”

When the bus driver told Rosa Parks that he would have to call the police if she didn’t get up, Parks replied, with extraordinary self-possession, “You may do that.” When the police arrived, she went without resistance. When the cops came for Claudette Colvin, she yelled at them that they were violating her rights, and refused to move. They dragged her from the bus. When they kicked her, she kicked them back.

Ever since I was first made aware of Colvin’s story and others like it, I’ve been adamant that these stories are worth remembering – these lives are worth remembering. We shouldn’t only rally around the perfect symbols of resistance and victims of injustice. We should rally around every victim of injustice. Every time there’s injustice.

Waiting for the right kind of victim means ignoring the actual victimization of black bodies across this country. Waiting for Tamir Rice means that Mike Brown, Eric Garner, Trayvon Martin, Kimani Gray, Sean Bell, Ramarley Graham, Oscar Grant, and other victims of police violence.

We shouldn’t wait any longer.

Protesters staged a die-in at Grand Central tonight immediately after the announcement of Eric Garner’s grand jury. There is a demonstration planned at Foley Square tomorrow afternoon. If you’re against police violence, find a demonstration near you – or start one.

Prosecute the Police

Vice recently ran a piece by Molly Crabapple that seeks to answer the question of how to stop cops from beating and killing people all the time. It’s an important question, given that police really do beat and kill people all of the time. There’s no national database, but there are many who have tried to keep an eye on police violence – but how can we stop it?

In the piece, Crabapple expounds on the fact that police aren’t held accountable for their actions, even when this involves injuring or killing civilians. Watchdog groups and accountability processes are toothless and impossible to navigate, and police departments quickly engage in cover-ups and character assassination of victims to discredit any allegations that there was police misconduct. In the rare occurrence that a police officer actually faces punishment, usually he is merely given paid leave or a desk job while the city or county pays out huge fines or settlements to victims and their families. The actual officers face little punishment at all.

In a country where daily life is increasingly criminalized—especially in poorer communities—police officers are protected from the consequences of their actions. Instead of being jailed, their punishment might be getting assigned to desk duty.

“It is virtually unheard of for police officers to be arrested and charged for assaults committed against ordinary civilians. It just never happens.” Scott Levy, a lawyer who is director of the Fundamental Fairness Project at the Bronx Defenders, told me.

[…]

The money for settlements comes from taxpayers, not the abusive officers or the police departments that employ them. In New York City, payouts for Bronx detective Peter Valentine’s illegal raids cost taxpayers nearly $1.3 million. Valentine, meanwhile, continues to “serve” the city.

If a victim accepts a settlement, the cop generally does not admit wrongdoing, which means the assault that led to the payout will not be held against him if and when he attacks others.

Crabapple’s solution is to police the police:

These meta-cops could be given quotas of officers to arrest each month. They’d no doubt lean heavily on quality-of-life violations, arresting cops who made communities unpleasant by groping black teens or hassling street vendors. As cops do now, these meta-cops could be promoted based on their arrest numbers. They might sometimes detain cops for rudeness, or failing to present ID, but that’s to be expected. Their jobs would be stressful. They’d have to lay down the law.

Of course, cops who used force against citizens would be handcuffed immediately, held for up to 72 hours in order to be processed and charged. If they didn’t plea out to a lesser crime, they’d be brought to trial, to determine if force was really used in self-defense or defense of others.

She admits that it’s a facetious idea, but the idea of using the police’s tools to crack down on their violence is not unthinkable. Reining in their impunity would require some kind of enforcement.

Reading through her piece, though, I was reminded of something I wrote a long time ago, about private criminal prosecutions. In some countries, civilians could bring criminal charges against state officials (such as police) in an attempt to hold them accountable where the state had failed. Given that, as Crabapple admits earlier in her piece, states attorneys are just as complicit by refusing to prosecute renegade officers and politicians are just as complicit by always supporting their boys in blue, perhaps accountability is better in the hands of the people.

The idea of using private prosecutions to hold police accountable is in the same vein as “meta-police,” in that we use the state’s usual channels for perpetuating violence (stats, quotas, lawyers) to try to curtail it. While “meta-police” may be better than allowing police to police themselves, any police overseers are still police. Any government attorney still works for the government. Taking action in the courtrooms, but outside of the state’s bureaucracy, could be a more sure way to hold police accountable.

Obviously, changing a fundamental piece of our judicial structure isn’t exactly an option on the table. And, as one person featured in her article states, the best solution is to abolish the police. In the meantime, finding ways to hold police officers accountable is an important thing to do.

Ferguson, Missouri

If you don’t know what’s happened in Ferguson, Missouri, this overview is a really good place to start. In sum: on Saturday, Michael Brown, an unarmed black teenager, was shot multiple times and killed by a police officer.

There are numerous investigations being launched. According to the police, Brown had reached for the officer’s gun. They said that a scuffle broke out, leading to a gun being fired (in the passive tense). But there is little confusion when looking at witness’ reports on the matter. Dorian Johnson was walking with Brown when the incident began, and saw the whole thing. Here is one video of Johnson’s account, and MSNBC interviewed him later – his testimony there is as extensive as it is unsettling:

The officer demanded that the two “get the f—k on the sidewalk,” Johnson says. “His exact words were get the f—k on the sidewalk.”

After telling the officer that they were almost at their destination, Johnson’s house, the two continued walking. But as they did, Johnson says the officer slammed his brakes and threw his truck in reverse, nearly hitting them.

Now, in line with the officer’s driver’s side door, they could see the officer’s face. They heard him say something to the effect of, “what’d you say?” At the same time, Johnson says the officer attempted to thrust his door open but the door slammed into Brown and bounced closed. Johnson says the officer, with his left hand, grabbed Brown by the neck.

[…]

“I seen the barrel of the gun pointed at my friend,” he said. “He had it pointed at him and said ‘I’ll shoot,’ one more time.”

A second later Johnson said he heard the first shot go off.

[…]

Brown and Johnson took off running together. There were three cars lined up along the side of the street. Johnson says he ducked behind the first car, whose two passengers were screaming. Crouching down a bit, he watched Brown run past.

“Keep running, bro!,” he said Brown yelled. Then Brown yelled it a second time. Those would be the last words Johnson’s friend, “Big Mike,” would ever say to him.

Brown made it past the third car. Then, “blam!” the officer took his second shot, striking Brown in the back. At that point, Johnson says Brown stopped, turned with his hands up and said “I don’t have a gun, stop shooting!”

[…]

By that point, Johnson says the officer and Brown were face-to-face. The officer then fired several more shots. Johnson described watching Brown go from standing with his hands up to crumbling to the ground and curling into a fetal position.

While MSNBC and other news organizations have interviewed Johnson, the police still haven’t, despite his attorney offering to set up an interview.

The current state of the world and the violence meted out is exhausting for me to read about and think about (and fatally dangerous for people like Michael Brown, Eric Garner, Trayvon Martin, Oscar Grant, and many more to exist in). I feel helpless as my government continues to make war on black and brown bodies. There are bigger things that need doing, but I thought I’d put this blog to use if at all possible. If there’s one thing that this blog does, it’s link people to other thing they should read. With that in mind, read on:

  •  This NYT photo is emblematic of the lopsided police oppression going on in Ferguon (and elsewhere). But this one (of the same instant) gives the viewer a sense of Ferguson’s anger.
  • That anger seeks an outlet, and the two protesters in this video said as much perfectly:

“I believe that it needed to happen. I believe that they’re too much worried about what’s going on to their stores and their commerce, and everything. They’re not worried about the murder. They’re not worried about the senseless death; and that’s what I’m worried about.”

“I just think what happened was necessary, to show the police that – you know – they don’t run everything.”

Would America Be Better with Private Prosecutions?

I’ve been debating this idea for a while. I first learned about private prosecutions in The Justice Cascade by Kathryn Sikkink, in which she examines human rights prosecutions in Argentina, Portugal, and Greece and argues that they contributed to the creation of the International Criminal Court by diffusion of the concept of human rights prosecutions. In her chapter on Argentina, Sikkink mentions a characteristic of the Argentinian judicial system that allowed human rights prosecutions to occur, and it’s a practice common in Latin American civil law systems (and maybe civil law systems in Europe and Asia – I don’t know). Basically, in common law systems like America’s, the state is always the prosecutor in criminal cases. This stems from the notion that a crime against the state’s laws is a crime against the state/society as well as a crime against the actual victim. While this functions in many ways, it fails in instances where the state doesn’t want to proceed with prosecutions either because the case is deemed too weak to be successful or because the state is actually culpable or even the perpetrator of crimes.

In Argentina, after years of disappearances and human rights abuses by the military regime, some people began to circumvent state prosecutions by leveling accusations at members of the state police independently through private prosecutions. Others were able to use private prosecution to force wary state prosecutors in the judiciary to continue moving forwards against the executive. Sikkink believes that this is just one of many things that allowed human rights prosecutions to arise in Argentina, but it is surely an important one.

While private prosecutions aren’t part of the American justice system, I wonder if they should be. I’m no lawyer, and this isn’t realistic, but it could be a tool with which victims typically unable to see perpetrators prosecuted (because the crime was ignored by the state or they were victimized by societal problems as much as by actual perpetrators) could still seek justice. Right now you can sue others in civil court and win monetary judgements, but the prosecution in criminal court is run by the state. If you end up in jail, it’s because the state thought you should be in there and a jury agreed. What if, instead of just suing for damages, victims of foreclosure fraud could get fraudulent bankers facing jail time?  What if, to circumvent police that refuse to call date-rape “rape,” victims of sexual assault could send rapists to jail?

Obviously this is no guarantee of justice: rich bankers and corporate executives would have the best lawyers, and even rogue police could be protected by their own, and judges and juries are just as affected by rape culture as the rest of society. But it could be a start.  Especially if lawyers were willing to take up these cases pro bono (or non-profits/social movements could start funds to pay fees) victims that usually can’t afford to seek out justice would be that much closer to some peace of mind. If only a few trigger-happy stand-your-ground neighbors, poisoned-your-water-supply polluters, or you-were-drunk-but-you-still-said-yes rapists who usually stay free instead found themselves in jail, it would send a message that just because you are powerful or your crimes don’t get everyone’s attention doesn’t mean you won’t at least be brought before a court and maybe found guilty.

Of course, even if it were possible to implement this, there would be problems. The power of some groups could still be strong enough to dissuade some from filing prosecutions, and the shaming of some victims would be too much for many to even think about coming forward. And it isn’t unrealistic to think that corporations-as-people would use private prosecutions to enact even more overreach against each other, whistle-blowers, and the usual victims.