“Part Of A Very Big Problem”: Jim Crow Persists; How Ferguson Case Leaks Revive A Shameful Tradition
On those rare occasions when it makes a real effort to grapple with the raw brutality of Jim Crow, the American mainstream media usually returns to a particular set of images that, by their very nature, are jarring and extraordinary: the burning cross, the hangman’s knot, the Klansman on horseback. This isn’t a bad thing; you can’t understand Jim Crow without understanding the significance of the Klan, for example. But it’s not an entirely good one, either.
The problem with focusing so much on these potent symbols is that it can lead us to a mistaken conclusion: namely, that the only evil of Jim Crow (and U.S. white supremacy in general) was manifested in these menacing, otherworldly forms, rather than in the system’s more humdrum and everyday modes of dehumanization. The problem with the former is easily solved. Today, the burning cross, the noose and the Klansman are all enemies of polite society. But those subtler manifestations of apartheid — the interlocking social networks and political institutions that together worked to disempower black citizens and deny them their rightful place as full members of the community — have proven more difficult to shake.
The proof is all around us, but if you want a more tangible example, the news out of Ferguson, Missouri, is happy to oblige.
After briefly turning the small, hard-luck suburb into the center of the world, the media has as of late been paying much less attention to the story of Michael Brown’s killing, mostly because people on both sides of the controversy have been stuck in an anxious holding pattern, waiting to see if a county grand jury will bring charges against Officer Darren Wilson. Many observers, and seemingly most pro-Brown Ferguson protestors, expect it will not; and many are already positioning themselves to win the war for public opinion that will ensue the moment the charges (or lack thereof) come down.
That’s the tense atmosphere into which the New York Times and the St. Louis Post-Dispatch recently dropped two bombs, both of which cited unnamed government sources saying evidence suggests Wilson’s claim to have shot Brown only after the youth tried to nab his gun — and to have killed Brown only after the wounded and unarmed teenager decided to charge him head-on — is indeed the case, in spite of what multiple eyewitnesses have said. As more than a few people noticed, the leaks all seemed to go in a certain direction (Wilson’s). Rather unnecessarily, the Brown family’s lawyer assured the media that the leaks weren’t coming from them. More necessarily, a forensic pathologist quoted extensively in the Post-Dispatch story said her remarks were taken out of context.
At this point in the story, anyone familiar with the dynamics of American race politics would suspect that like countless racially stratified and unharmonious small-town authorities before it, the establishment in Ferguson was doing its damnedest to quash an embarrassing investigation and protect one of its own. Perhaps aware of the likely widespread nature of that view, former St. Louis County Police Chief Tim Fitch was swiftly thereafter quoted speculating that the leaks weren’t coming from Ferguson authorities, but rather were the result of the Department of Justice’s machinations. Because the feds recognize that it’s “probably very unlikely” that Wilson will be charged, Fitch said, the DOJ was selectively leaking evidence in order to “let people down slowly” before the announcement of no charges being filed came.
If that sounds a bit odd to you — Fitch’s contention that Attorney General Eric Holder had previously decided to “take over the Ferguson Police Department” is a warning sign — you’ve got some prestigious company. Barely more than a day after Fitch made news, the DOJ was quoted in the Los Angeles Times and elsewhere expressing serious unhappiness over the leaks, saying they were “irresponsible and highly troubling” and describing them as “an inappropriate effort to influence public opinion about this case.” Needless to say, Ed Magee, the spokesperson for the county prosecutor’s office, has denied responsibility entirely. “There’s really nothing to investigate,” Magee told the Times. “All we can control is people in our office and the grand jury, and it’s not coming from us or the grand jury.”
As you can probably tell, I’m highly skeptical of the idea that Eric Holder’s DOJ has all along been playing a secret shell game, pretending to enter into the Ferguson maelstrom in order to sideline local authorities it deemed biased and/or incompetent while, behind the scenes, doing everything it could to protect Wilson and discredit Brown. But even if we end up discovering that the Department of Justice was playing both sides, it would make no difference to the bigger, lingering problem Ferguson revealed — the way the legal and political institutions in much of America still treat black American citizens as if they were separate from the rest of the community, a force to be contained, coerced, managed. (In fact, if Fitch is correct, and the DOJ is trying to “let people down slowly,” it would actually strengthen the point.)
More important than these specific leaks, however, is the way that the behavior of officials throughout the power structure of Ferguson have responded to the protestors as if they were a dangerous, alien presence rather than American citizens who have full and equal rights just like the rest. Instead of trying to reach an accord with Michael Brown’s supporters, the Ferguson establishment is trying to preemptively position itself as a victim, hoping it can win the war for public opinion if and when the chaos of this summer reignites. This isn’t because the overwhelmingly white men and women in positions of authority in Ferguson are especially villainous, but rather because Ferguson, like so much of contemporary America, remains very much the town that racist social engineering built, one in which the unspoken assumption is that black people can never be equal members of their own community.
So, to return to my earlier argument about the visuals of Jim Crow, let’s indeed celebrate that the most extravagant symbols of that terrible era — the burning cross, the noose, the Klansman’s hood — are now widely considered to be ugly and taboo. For a country in which, not so long ago, the lynching of black men was considered a source of public entertainment, that’s no small thing. But let’s also keep in mind that in so far as it was a social and political system that fundamentally denied black people membership in the larger community, Jim Crow still persists.
By: Elias Isquith, Salon, October 25, 2014
“U.S. Citizens Have A Right To Protest, Even In Ferguson”: Rights Not Respected In The Moment Are Not Rights At All
Last week, a federal judge told us what we already knew.
Namely, that police in Ferguson, Missouri, violated the rights of protesters demonstrating against the shooting death of Michael Brown. U.S. District Judge Catherine Perry struck down an ad hoc rule under which cops had said people could not stand still while peacefully protesting. Some were told they couldn’t stop walking for more than five seconds; others that they had to walk faster.
Again: These were not rioters. These were citizens seeking “peaceably to assemble, and to petition the Government for a redress of grievances,” as the First Amendment gives them the right to do. So Perry’s ruling is welcome, but not particularly surprising. The no-stop dictate was so flagrantly wrong as to make any other decision unthinkable.
Still, one’s sense of righteous vindication is tempered by the fact that police felt free to try this absurd stratagem in the first place — and by the fact that this was hardly the only recent example of police using the Constitution for Kleenex.
Ferguson, let us not forget, is also the town where reporters were tear gassed and jailed and photographers ordered to stop taking pictures, which seems a pretty straightforward abridgment of the Constitution’s guarantee of freedom of the press. Meanwhile, a new ACLU report makes Boston Police the latest — but hardly the only — department empirically shown to engage in racially biased policing, which would violate the Fourteenth Amendment’s promise of “equal protection of the laws.” And a recent Washington Post series illustrated how civil asset forfeiture laws allow police to search your vehicle, seize any cash they find and keep it, without even charging you with a crime, until or unless you prove to their satisfaction that you came by the money legally. Goodbye, Fourth Amendment protection against “unreasonable searches and seizures.” Farewell, Fourteenth Amendment stricture against seizure of property “without due process of law.”
It seems our constitutional rights are being nibbled out from under us, compromise by compromise, expediency by expediency, while we watch with dull complacence. In our unthinking mania for laws to “get tough on crime,” we actually made it tougher on ourselves, altering the balance of power between people and police to the point where a cop can now take your legally earned money off your sovereign person and there’s little you can do about it.
“I know my rights,” an aggrieved citizen would yell once upon a time. Turns out that doesn’t mean a whole lot anymore.
Indeed, at the height of the Ferguson protests, an L.A. cop named Sunil Dutta published in the Washington Post an op-ed advising that, “if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.” Don’t argue, he said, even if you “believe (or know)” your rights are being violated. Deal with it later.
Certainly, he’s correct that there’s nothing to be gained by making an a– of yourself or making an angry cop angrier. Nothing will be settled on a street corner.
Yet, there is something unsettling about the idea that you are only allowed to assert your rights at a later date in a different forum. The bullying behavior and contempt for the Constitution that characterized police in Ferguson ought to leave us less than sanguine with that notion, ought to encourage us to resist — at the ballot box, in the council meeting and, yes, by lawful protest — this drift toward unlimited police authority.
It’s all well and good that now, several weeks after the fact, a court affirms the rights Ferguson police denied. But that’s a poor consolation prize. An argument can be made that rights which aren’t respected in the moment they are asserted are not really rights at all.
By: Leonard Pitts, Jr., Columnist, The Miami Herald; The National Memo, October 12, 2014
Last Thursday the Supreme Court agreed to hear arguments in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The case concerns the “disparate impact” rule, a legal guideline embedded in the 1968 Fair Housing Act that says discrimination doesn’t have to be intentional to be discrimination. This rule has been at the bedrock of fair-housing enforcement for more than four decades.
Another way to understand disparate impact is this: It’s a way to confront the realities of racial inequality without trying to prove the motivations of an institution, organization, or landlord. In housing especially, it’s rare to get someone as explicit about his discrimination as Donald Sterling. More often, you must look for patterns of unequal results or unfair treatment that stem from “objective” or “neutral” criteria.
In United States v. Wells Fargo, for example, the Department of Justice sued the mortgage lender over its role in the subprime market. According to the suit, Wells Fargo brokers raised interest rates and fees for more than 30,000 minority customers, and encouraged black and Hispanic homeowners to take subprime loans even if they qualified for traditional financing. We don’t know if malice drove this policy, but under disparate impact guidelines, it doesn’t matter: The government can show concrete harm and act accordingly.
This is an expansive power, but given our history, also a necessary one. We built our housing markets on a structure of discrimination, from bias in lending and state-sanctioned segregation to exclusionary zoning and active attacks on minority homeownership. To fix this, you can’t just ban discrimination, you need a countervailing force; otherwise, inequality would reproduce itself.
Beyond this, there’s the simple fact that racial bias is still alive in vast areas of American life, and it’s a fool’s errand to root out racists—most people who discriminate are too smart to broadcast their prejudice. Disparate impact—backed by both courts and the present administration—is a vital tool in fighting these battles.
But it’s also controversial, with opponents who see it as subversive to equal protection. “Instead of promoting equal protection under the law,” wrote Ammon Simon for National Review in 2012, disparate impact “grasps at ‘ensuring equal results,’ treating people like depersonalized ‘components of a racial, religious, sexual or national class.’ ” Likewise, in his concurrence in Ricci v. DeStefano—an affirmative action case—Justice Antonin Scalia swings at the doctrine, calling disparate impact provisions in employment practices a “racial thumb on the scales” that forces discriminatory “racial decisionmaking.”
Scalia and the conservative bloc of the Supreme Court are hostile to almost all race-conscious policies—from affirmative action (which Justice Clarence Thomas once compared to segregation) to important parts of the Voting Rights Act—and want to end disparate impact as a federal tool. Last year they almost had a chance; a group of New Jersey residents challenged disparate impact in Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., a fight over a neighborhood revitalization plan that plaintiffs claimed would dislocate and disproportionately harm minority residents. But the case was settled before it could reach the high court.
With the latest case, a settlement is unlikely. The court will hear disparate impact, and most likely—following Chief Justice John Roberts’ infamous declaration that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—end it.
It’s hard to overstate the magnitude of such a decision. In the last decade, with Roberts at the forefront, the Supreme Court has chipped away at the major provisions and policies of the civil rights era. With Parents Involved in Community Schools v. Seattle School District No. 1 in 2007, the Roberts court struck down voluntary integration efforts in Seattle; with Shelby County v. Holder, it struck down the preclearance formula for the Voting Rights Act, gutting the law and opening the door to voter suppression; and with Schuette v. BAMN, it gave Michigan voters free rein to block affirmative action through constitutional amendment. At the moment, it’s poised to uphold strict voter identification laws and—if the opportunity presents itself—strike at the core provisions of the VRA.
There’s a reason Justice Sonia Sotomayor swiped at Roberts in her now-famous Schuette dissent—the chief justice has launched an astounding assault on civil rights law that promises huge consequences for efforts against racial inequality. And indeed, Roberts is joined by a whole host of right-wing legislators and conservative intellectuals—perched at think tanks like the Heritage Foundation and the misnamed Center for Equal Opportunity—all united in a “colorblind” vision of American life that doesn’t see a public role for fighting racial inequality, and often holds it as overstated or attributable to “culture,” not the accumulated effects of past discrimination.
What’s interesting is the degree to which this isn’t new. In fact, it sits parallel to our past, where large gains for minorities—and blacks in particular—sit flush with setbacks and challenges.
We don’t think of it this way in the popular imagination, but the United States had two periods of “Reconstruction.” The first came after emancipation, when freed slaves worked in alliance with sympathetic whites to rebuild the South and forge a new path after the Civil War. But weakened by President Andrew Johnson, it never came to fruition. Instead, it was destroyed by ex-Confederates who terrorized the South with violence and drove blacks out of political life. With the Democratic Party as their vehicle, these “Redeemers” would set the stage for Jim Crow, convict leasing, and the march of horrors that marked black life for the next century.
The Second Reconstruction was the civil rights movement, and—as historian Eric Foner writes in his magisterial book on the first Reconstruction, it marks a time when “the nation again attempted to come to terms with the implications of emancipation and the political and social agenda of Reconstruction.”
Where the first Reconstruction had politicians, the second had preachers (and later, again, politicians). And where the first gave us a new Constitution—through the 13th, 14th, and 15th amendments—the second gave force to their provisions, through the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. It’s these laws—and the court cases that followed—that dismantled Jim Crow and integrated blacks into American political life.
Outside the far, far fringes of American life, there’s no challenge to that inclusion. But as we see with large parts of the Republican Party—including today’s conservatives on the Supreme Court—there is a challenge to the race-conscious policies and measures we use to protect and secure the political participation of blacks and other minorities.
This attack has far more to do with partisan advantage than any racial animus—as Texas Attorney General Greg Abbott explained in his defense of the state’s voter ID law, the goal is to limit Democrats, not minorities. Still, the effect is the same: applying new state limits on participation that have their largest impact on minorities, with shrinking protection from the federal government.
In his 1883 ruling against the 1875 Civil Rights Act—which prohibited black exclusion from jury service and guaranteed equal treatment in public accommodations, public transportation—Justice Joseph P. Bradley took a stand that should sound familiar to contemporary opponents of so-called racial entitlements:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.
Replace “slavery” with “Jim Crow” and you have the popular conservative view of race and Constitution. And small setbacks aside, that view is on the march, with its crosshairs aimed at disparate impact and the Fair Housing Act.
Put another way, if the civil rights movement was Second Reconstruction, then—if we need a name for today’s push against its key measures—you could do worse than the Second Redemption.
By: Jamelle Bouie, Slate, October 10, 2014
Former U.S. Rep. Ron Paul’s recent foray into 9/11 trutherism has revived questions about how his fringe politics could affect his son’s presidential ambitions. But Rand Paul isn’t the only White House aspirant with a political anchor in the family.
During an August 21 meeting of the Western Williamson Republican Club, Pastor Rafael Cruz — father of Senator Ted Cruz (R-TX) — attempted to explain that black Americans “need to be educated” about the real history of the civil rights movement, and that “the average black” doesn’t understand the minimum wage.
Cruz ran into trouble recounting a recent conversation that he had with a black pastor.
“I said, as a matter of fact, ‘Did you know that civil rights legislation was passed by Republicans? It was passed by a Republican Senate under the threat of a filibuster by the Democrats,’” Cruz told the group, as reported by BuzzFeed. “‘Oh, I didn’t know that.’ And then I said, ‘Did you know that every member of the Ku Klux Klan were Democrats from the South?’ ‘Oh I didn’t know that.’ You know, they need to be educated.”
“Jason Riley said in an interview, Did you know before we had minimum-wage laws black unemployment and white unemployment were the same?” he added, referring to the conservative Wall Street Journal editorial board member. “If we increase the minimum wage, black unemployment will skyrocket. See, he understands it, but the average black does not.”
Cruz’s assertions are riddled with factual inaccuracies. For starters, casting conservatives as the real heroes of the civil rights movement requires an absurd revisionist history (nevermind the fact that Republicans didn’t actually control the Senate in 1964).
Cruz is similarly off base on the effects of increasing the minimum wage. Both professional economists and recent history strongly dispute the notion that guaranteeing workers $10.10 per hour will cause unemployment to “skyrocket.” And, contrary to Cruz’s warning, “the average black” would actually disproportionately benefit from such an increase.
Additionally, Pastor Cruz’s riffing on the intelligence of “the average black” probably won’t help Republicans if they choose to revive their disastrously failed outreach to minorities before the 2016 presidential election. And that could be a problem for Senator Cruz.
Ted Cruz has made no apologies for his close personal and professional relationship with his father, who has been described as a “power broker” within the senator’s political organization. He has even used a Senate aide to book his father’s paid speeches, like the one given to the Western Williamson Republican Club. That means that, if Senator Cruz does pursue an oft-rumored presidential bid, he will have to answer for his father’s radical rhetoric. After all, not many serious presidential candidates have close advisors who believe that the California drought is the result of a United Nations plot to confiscate private property, or that the president is a secret Muslim who will force the elderly to undergo “suicide counseling,” or that evolution is a communist lie, among many other outrageous conspiracy theories. Cruz would have a difficult enough time convincing the electorate that he is mainstream enough to serve as president; his father’s regular outbursts will only make it harder.
Pastor Cruz believes that President Obama was “brainwashed for 18 years” by listening to the sermons of the Reverend Jeremiah Wright. What does that mean for Ted Cruz, who has been listening to his father for a lifetime?
By: Henry Decker, The National Memo, September 3, 2014
“How The Supreme Court Protects Bad Cops”: How Many More Deaths And Riots Will It Take Before SCOTUS Changes Course?
Last week, a grand jury was convened in St. Louis County, Mo., to examine the evidence against the police officer who killed Michael Brown, an unarmed black teenager, and to determine if he should be indicted. Attorney General Eric H. Holder Jr. even showed up to announce a separate federal investigation, and to promise that justice would be done. But if the conclusion is that the officer, Darren Wilson, acted improperly, the ability to hold him or Ferguson, Mo., accountable will be severely restricted by none other than the United States Supreme Court.
In recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.
The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.
The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.
The court has also weakened accountability by ruling that a local government can be held liable only if it is proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This encourages employers to control the conduct of their employees and ensures that those injured will be compensated.
A 2011 case, Connick v. Thompson, illustrates how difficult the Supreme Court has made it to prove municipal liability. John Thompson was convicted of an armed robbery and a murder and spent 18 years in prison, 14 of them on death row, because of prosecutorial misconduct. Two days before Mr. Thompson’s trial began in New Orleans, the assistant district attorney received the crime lab’s report, which stated that the perpetrator of the armed robbery had a blood type that did not match Mr. Thompson’s. The defense was not told this crucial information.
Through a series of coincidences, Mr. Thompson’s lawyer discovered the blood evidence soon before the scheduled execution. New testing was done and again the blood of the perpetrator didn’t match Mr. Thompson’s DNA or even his blood type. His conviction was overturned, and he was eventually acquitted of all charges.
The district attorney’s office, which had a notorious history of not turning over exculpatory evidence to defendants, conceded that it had violated its constitutional obligation. Mr. Thompson sued the City of New Orleans, which employed the prosecutors, and was awarded $14 million.
But the Supreme Court reversed that decision, in a 5-to-4 vote, and held that the local government was not liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the majority, said that New Orleans could not be held liable because it could not be proved that its own policies had violated the Constitution. The fact that its prosecutor blatantly violated the Constitution was not enough to make the city liable.
Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.
When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.
The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.
Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?
By: Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine: Op-Ed Contributor, The New York Times, August 26, 2014