It's Not About Race, It's About Racism

I try not to watch much Fox News these days. Well, any days. I mean I've never watched any Fox News, except for that one time when Stephen Colbert went on the O'Reilly Factor. But in general I try to keep my exposure level to Fox, and to conservative media in general, to a minimum. That's the kind of thing that gets you rather criticized in some parts, but seeing a few clips of Fox's coverage of the Ferguson situation has reminded me why I have this policy. It... was kind of shocking. And disturbing.

But anyway, one of the themes of the rantings of the people on Fox was that it was wrongful of liberals generally to make Ferguson and the shooting of Michael Brown about race. So here's what I have to say about that: it's not about race. It's not about race at all. Michael Brown's shooting is not outrageous because Michael Brown was black. It's outrageous because a young man was murdered. (Yes, that's conclusory, but as far as I can tell there's no reason to think it was anything other than murder, except that the perpetrator was an on-duty cop and there seem to be people who increasingly think that it's just a logical impossibility for an on-duty cop to commit murder). It's doubly outrageous because the murderer was a member of the government, of law enforcement, sworn to protect the people. Which, you might think is a bit inconsistent with murder. And the outrage is compounded by the fact that this happens a lot. And it pretty clearly doesn't have to: other countries simply don't experience significant numbers of murders by their police officers (and also don't suffer rampant violent crime by the thus-emboldened criminals).

So where does race enter the story? Because essentially all the victims of police murder in this country happen to be black. Or to put it another way, race only enters the equation because racist, violent police officers put it there. Michael Brown's death was an outrage simply because he was human and he was murdered. The point is that he was murdered because he was black, as an awful lot of other people have been. So it's really not about race, and it's certainly not really about his race. It's about racism, and the racism which seems to spawn most of the police violence and brutality in this country. This is also, of course, why you see lots and lots of white people every bit as outraged as any black person about Ferguson (or at least very nearly; I wouldn't want to presume that those of us who don't live under this threat can quite understand just how terrifying it is). The conflict here isn't white against black, it's racists against non-racists. The former are a rather large subset of white people; the latter are a coalition of non-whites and white liberals. And those of us in the not-racist coalition are all equally outraged about Brown's death, and about the conservative indifference to his death (sorry, did I say conservative? I meant racist, it's so easy to get confused these days). We'd be equally outraged at the shooting of a white person by cops, except that, well... that doesn't happen so much.

Any guesses why that might be, Fox contributors?

::crickets::

Also, Regarding "Justified Shootings"

Okay, one last thought about the whole Ferguson thing. As part of their coverage of the Ferguson outrages this week, Vox.com put up a post called, "When is it legal for a cop to kill you?" The idea was to educate people about the law governing police shootings, which is basically that, as a matter of constitutional law, cops may shoot someone to protect their life or the life of a third party (as may anyone else who's in a position to do so), and they may also shoot a suspect fleeing a crime scene if and only if they have probable cause to think the suspect has committed a violent felony. And the main reaction I kept having to reading the article was, okay, but do you have to actually kill the person? Like, we can put on our philosopher's hats and think about when it's morally justified to kill someone, and we might come up with something a lot like these two situations. The first one makes a ton of sense: in a choice between "murderer kills innocent person" and "attempted murderer is killed," you choose option #2 every time (except, maybe, in some sort of action-movie scripted scenario where the attempted murder in question is actually justified for some reason, heh). The second one is a bit tougher to justify given the level of uncertainty that may often be involved, but at the very least we can see why not letting someone you know to be a murderer flee a crime scene has some of the same elements of not letting someone shoot someone else.

But just because killing the person in question might be somewhere above the ethical replacement-level line, that doesn't mean it's the best thing. Ideally you'd manage to both prevent the violence/apprehend the suspect and not kill anyone. Now, I get why it's not a great idea for cops to shoot dudes who point guns at other dudes in the leg. In that circumstance, I get shoot to kill, and honestly, if you point a gun at someone else and make it pretty damn clear you mean to shoot them, you don't have that much of a complaint if someone else shoots and kills you first.* But in the second circumstance? The only possible reason for preferring to shoot a fleeing suspect in the chest is that you're more likely to hit them that way. Stipulating that your bullet will find its target, shooting in the leg accomplishes 100% of what shooting in the chest would, minus the gratuitous killing. Hell, shooting with some sort of stun gun/tranquilizer dart/tazer would accomplish 100% of what shooting to kill would, minus the gratuitous killing.

So basically what I'm saying is, shouldn't there be some kind of narrow tailoring here? Shouldn't there be some effort to minimize the amount of killing that goes on, rather than just saying, "well, I can make a case that killing this person isn't worse than leaving them uninterfered-with, so I'm gonna kill them"? Shouldn't there maybe be a rule that, if you could've chosen a less-likely-to-cause-someone's-death option that would probably have gotten the job done just as well, you weren't exactly "justified" in using the more-likely-to-kill option instead? Maybe that can't be as a matter of law; maybe you shouldn't be sent to jail for such a decision. But shouldn't you, y'know, get fired for it? Or something? One way or another I know that other countries get by without having their police forces shoot so many people dead, so there must be something we could do to have that happen less often here that wouldn't be a disaster. It seems to me like a moral imperative of the first order that we try.


*Of course, there is the ol' grey zone where someone does something that makes it unclear whether they're about to try to shoot someone. Like, for instance, the guy who was shot earlier this week (not in Ferguson, I believe, just elsewhere in America, the Greatest Country Ever or so I'm told) carrying a toy, plastic rifle around a Wal-Mart. Or when someone goes to fish their wallet out of their pocket for ID or whatever and the policeman thinks they're going for a gun. (Because concealed carry doesn't have any downsides whatsoever...) I feel like the balance that an awful lot of police seem to strike in these situations is to basically give complete, 100% priority to protecting their own life, and 0% priority to making sure they don't kill an innocent person. That does not seem like a particularly good balance to me, since they're both, y'know, human beings who aren't in the act of trying to murder anyone. In fact, since the police officer but not the totally random dude off the street has literally signed up to risk their life in defense of the populace, I think there's a valid though by no means slam-dunk argument for giving more weight to not killing totally random innocent dudes than to letting cops protect themselves. But at the very least they've gotta give more weight to that interest than they do now, right?

My Problem with Washington v. Davis

Washington v. Davis is a 1976 Supreme Court case which ruled, in essence, that the Fourteenth Amendment's Equal Protection Clause is not a self-executing ban on all government policies which have racially disparate impacts. That is to say, just because some policy has a more negative effect on black people than white people is not enough to make it into a violation of the Equal Protection Clause. To be even more specific, the point is that if all the person challenging the policy can show is that such a disparate impact exists, they lose; instead they need to show that the policy had racially discriminatory intent. Now, in some sense this has to be right. Most states fund themselves predominantly through property taxes and sales taxes and therefore have regressive tax codes, unlike the income-tax-funded federal government. Black people tend to be poorer, and are therefore disproportionately burdened by regressive tax codes. But the Equal Protection Clause cannot reasonably be construed as making sales taxes off-limits. My tendency has been, therefore, to say that I more or less agree with the statement in Washington v. Davis that disparate impact alone does not make a constitutional violation, though I might want to press pretty hard on letting disparate impact be considered evidence of discriminatory intent, perhaps even in the absence of any other evidence.

But then let's consider the specifics of the case Washington v. Davis itself, and how it relates to this week's outrage in Ferguson, Missouri. The facts of the case are that two African-Americans had applied for positions in the Washington, D.C. police department, and had been rejected based on their scores on Test 21, a verbal skills test used throughout the federal bureaucracy. They sued, because as it happens, black people failed Test 21 at a much, much higher rate than white people. (Like three times higher I think, roughly 60% versus 20%.) Now, interestingly, the Court also ended up ruling that, in fact, there was no disparate impact, because the Civil Rights Act of 1964 uses a disparate impact standard. I'm not exactly sure how they got to that conclusion, and my guess, from a judicial-sociology perspective, is that the main difference between dissenters Thurgood Marshall and William Brennan and the majority was their understanding of the disparate effects of the policy.

But in any event, now let's ask the key question: assuming, for the sake of argument, that the effect of Test 21 was to result in a more-or-less all-white police force in a majority-black city, and also assuming for the sake of argument that Test 21 was adopted with absolutely, positively no intent for that to happen, but only with intent to make sure that police officers had good verbal skills (an undoubtedly good thing!), is there really no problem here? Because, as we see so dramatically in Ferguson, the police are basically the instrument of government. They are the ones who actually impose governance and law upon the people. They are the ones who wield the violent force which the government is said to have a monopoly on the legitimate use of. And they, therefore, are the ones in position to perpetrate government abuse of the people. Hell, they're in a better position to do that than legislators, whose abusive actions can be more easily challenged in and nullified by the courts. When a cop kills someone, well, there's no such thing as compensatory damages for that.

And so I think there's a very real sense in which having a police force almost exclusively comprised of members of the historically oppressor race policing a large population of the historically oppressed race is kind of, y'know, just not okay, whether or not you meant for it to happen. For similar though arguably less weighty reasons ('cause we're not talking about the people walking around with guns on their hips), I think it's just not okay to have policies in place whose result is that your state bureaucracy is segregated into an all-male group of powerful office-holders and decision-makers and an all-female secretary pool. (That's the facts of the next case in the disparate impact sequence, Personnel Administrator of Massachusetts v. Feeney.) And I become particularly skeptical of the actual facts of Washington v. Davis when I think about how easy it is for verbal skills tests to become, in essence, whiteness tests. I mean, hell, there's a reason why segregationists used literacy tests. Now, yes, there does have to be some accommodation to the perfectly legitimate government interest in making sure its people can basically communicate. But guess what? Adult black people tend to communicate with one another pretty well. So if your "verbal skills test" is flunking most of them, maybe that means you're really testing mostly for "ability to talk like a white person," something that probably isn't that necessary for being a Washington, D.C. police officer. And shouldn't that be unconstitutional, even if it was kind of accidental? If we believe that the constitution commits us to racial equality (which we do; see Brown v. Board of Education), and if we believe that it forbids systems of caste, shouldn't it just not be possible to constitutionally set a whole bunch of white dudes to police a large black population?

Big Government, but Actually

So, I've written before about how I dislike the phrase "big government," or at least the way it gets used these days. This week's disaster in Ferguson, Missouri, where yet another young, unarmed black man was shot and killed by police and where those same police have responded to the wave of protests said murder occasioned by using military equipment on their own citizenry, is, I think, a really powerful demonstration of that point. Because this is big government, real big government. This is government which is big not in its budget or in its bureaucracy but in its capacity for physical force. And let's remember, physical force is what makes a government a government. Literally, governments are defined by their relationship to violence. That's how you tell what's the government in any given area, really: you look to see who has a monopoly on the legitimate use of force. Well, I say "legitimate," because I guess they're only one competitor in the illegitimate-use-of-force market, if a rather major player. And so I think the most meaningful possible sense of the phrase "big government" has got to be a government with an aggrandized relationship to violence. Like, say, a government which has gone around equipping local police forces with military equipment mainly because it (the military equipment) was there, meaning that the so-called "War on Drugs" just had to turn itself into an actual, literal war against the American people, or rather against those of the American people who have the misfortune of dark-colored skin. That's what we're seeing in Ferguson, and that's what's really worth railing against. That and the highly-related surveillance state form of "big government." There's a pretty good reason to think that a government which is spying on its populace and which has in essence armed itself against that populace as against an enemy military power is doing something wrong, and is at the very least a pretty real threat to the people it's meant to serve. There's no great a priori reason to think that a government with many regulations or with a large budget is doing something wrong. One of these things deserves to have the derisive "big government" label slapped on it, the other doesn't. At least Rand Paul has the decency to object to both.