by Bryan K. Bullock
The purported “risks” that police voluntarily take are transferred to their Black and brown victims, who have no practical protections. Legal settlements do not balance the scales. “They only serve to transfer the risk of policing onto the backs of tax payers or unto the insurance policy the municipality may have for such occasions.” Black and brown people “must lead the charge and make concrete, enforceable demands given the stakes at hand.”
Assuming the Risk of Blackness
by Bryan K. Bullock
“The police establishment, with the cooperation and assistance of the prosecutorial and judicial arms of the government, have successfully transferred the purported dangers inherent in their occupation unto black and brown people.”
In the law of torts, there is a legal theory called assumption of the risk. This theory posits that when one is engaged in inherently dangerous activity, one assumes or accepts the risk inherent in said activity and cannot therefore pass the risk of injury on to another party. It is a defense in negligence proceedings. For example, if a person chooses to climb a mountain, work on an oil rig or a skyscraper, where the risk of danger is so obvious, that the party knew of the potential risk and engaged in the activity anyway, they cannot therefore sue for damages for the injuries they incurred in voluntarily engaging in such activity. Assuming, without accepting, the idea that everyday police work is inherently dangerous, then it stands to reason, under this theory, that the police cannot transfer the risk of the work that they have voluntarily accepted onto third parties. Yet, that is exactly what they have done.
In particular as it relates to African Americans, Latino Americans and Indigenous People, the police establishment, with the cooperation and assistance of the prosecutorial and judicial arms of the government, have successfully transferred the purported dangers inherent in their occupation unto black and brown people. The risk of policing -- that is, the risk of being hurt or killed -- is risk that police officers take on voluntarily and with full knowledge of the dangers involved. Therefore, they should not be allowed to sue third parties, in particular persons that injure them in the performance of their duties, because they have assumed the risk that they may be injured. At a minimum, if they sue a third party, this defense should be available to the third party and the police officer should not prevail on his/her claim for damages.
“They should not be able to maim or kill third parties because they are afraid in situations that their occupation calls them to engage in.”
Taking this theory one step further, the police should not be able to transfer the risk they have voluntarily taken on, unto third parties. That is to say, they should not be able to maim or kill third parties because they are afraid in situations that their occupation calls them to engage in. Their purported fear, as in the infamous, “I thought he had a gun” situation where a cop kills an unarmed black man out of “fear,” should be invalidated legally, particularly where the fear is unwarranted because the deceased was unarmed or was a child. And because the cop’s “fear,” real or imagined, is inherent in the occupation, and it is he/she, that must deal with the consequences of that fear, not the objects of said fear. The application of this doctrine is not perfect, yet, it is appropriate and should be used by courts and prosecutors in deciding cases against police officers as opposed to using the cop’s “fear” as a justification to excuse his brutality or murder of unarmed Black citizens.
As it stands, the police do not bear their own risks. Instead, they transfer their risk unto black and brown people in our encounters with them. Their voluntarily assumed risk results in our death or injury as if we have assumed the risk of being in the presence of the police. The risks of their occupation results in the risk to our lives. Their fear equals our death. Our justifiable fear of the police is irrelevant and the fact that we are engaged in simply living or exercising our constitutional rights (which includes living without having our life taken from us without due process of law) seems to have no value in legal theory or application. So, implicitly and sometimes explicitly, white society, via its legal institutions, has said it is better for black and brown people to be hurt or to die at the hands of the police, then it is for the police to die, whether they were actually in danger of being harmed or not. That it is more important for the police to make it home after work than it is for the African Americans and Latinos who come into contact with them, whatever the reason.
“The risks of their occupation results in the risk to our lives.”
We cannot talk back, fight back, play with toy guns, sell loose cigarettes or resist even unlawful arrest, lest we be beaten or killed, because the police are afraid in the performance of the duties they assumed voluntarily. As a society, one can legitimately ask whether we should allow such fearful persons to own guns or engage in an occupation where one must manage one’s fears due to the fatal consequences such hires can produce. However, a society need not tackle such questions when those most affected by the dire consequences are either undesirable or unworthy victims. This is the quasi-legal status that Black people inhabit in this society.
The sociologist, Gunner Myrdal traveled the American South in the 1940’s and noted that the police officer “stands not only for civic order as defined in formal laws and regulations, but also for ‘White Supremacy’ and the whole set of social customs associated with this concept.” Myrdal recognized the over-aggressive nature of policing as it related to African Americans and concluded that the role the police was to keep Black people in their “place.” The function of policing in black communities has not changed since Myrdal’s time. The routine harassment of black people who are simply “driving while black,” “walking while black,” “hustling cd’s while black,” “selling loosies while black,” “shopping at Wal-Mart while black,” “being high while black,” “being served with a warrant with your child in your arms while black,” etc., have no legitimate police purpose and are not routinely used even against the white poor.
The beatings and killings so gorily plastered across social media validate Myrdal’s observations that there was “a strange atmosphere of consistent illegality around the activity of the officers of the peace.” He went on to note, “Probably no group of whites in America have a lower opinion of the Negro people and are more fixed in their views than Southern policemen. To most of them…practically every Negro man is a potential criminal. They usually hold, in extreme form, all other derogatory beliefs about Negroes: and they are convinced that the traits are ‘racial.’” Myrdal’s observations of Southern white cops are just as applicable to Northern white cops and even to Black cops in both hemispheres. Because of this “lower opinion” of black people, African Americans take their lives in their own hands in any encounter they have with the police, whether they “comply or not,” even though it is the police officer who has voluntarily placed his health and life at risk by accepting the oath to uphold the Constitution. This is an absurd, perhaps unconstitutional transference of risk.
“Myrdal recognized the over-aggressive nature of policing as it related to African Americans and concluded that the role the police was to keep Black people in their ‘place.’”
Society, by way of taxes, acknowledges the risk to police officers and provides them with bullet-proof vests, guns, tasers, billy clubs and the legal use of force that is not granted to other citizens, in recognition that the police officer has voluntarily taken on an occupation where his/her health may be in jeopardy. No such protection is provided to the Black citizen even in the face of the clear risk associated with being black in America. Instead, she operates in a zone of vulnerability. She is subject to all manner of brutality and death simply by driving, walking, living in America in her own skin. And even when he arms himself, as he has a right to do, the African American is still vulnerable to death by cop. Perhaps even more so, as in the case of the Panthers, Philando Castille and Korryn Gaines or Mark Hughes. So, for the African descendant person in America, the risks associated with policing, namely being injured or death, is really the risk of living and of being in the presence of the police for any reason, nor matter how legitimate or illegitimate, minor or major, the interaction may be. In the real world, as opposed to the Bizarro World concocted by the police and their judicial enablers, the cop’s fear cannot possibly be any greater than the Black person’s fear when dealing with them. The Black person knows that any encounter with police can lead to his being beaten up, arrested or killed. This risk is real, not speculative. It so real that black parents warn their children at an early age about the dangers of interactions with the police. White society hears these stories, marvels at them, but does nothing that will make such talks unnecessary. It accepts these risks on behalf of blacks while at the same time admonishing them for not graciously, silently, accepting the risk.
“She is subject to all manner of brutality and death simply by driving, walking, living in America in her own skin.”
What similar risk does the police officer have in routine encounters with the average Black person? For the cop, the risk is largely speculative. That is to say, yes, one can accept the reality, that in any particular encounter with anyone, black or white, there is a risk that something may happen to endanger the cop’s life. However, most of policing is in fact sedentary and safe. There are more dangerous occupations than policing. Additionally, society supplies the police with tools to protect him/herself. And three, the cop can legally act on his fear and society has provided him with the tools to protect himself. Conversely, few, if any, legal protections exist specifically to protect African Americans from the police. In fact, African Americans have more to actually fear from the police than the police have to fear from them. If or when African Americans begin to act on their fear, a fear that is far more justified than the fears of the armored police officers, neither white society, nor the courts or legislatures will have any sympathy for them. The Black woman can’t shoot a cop out of fear and argue that “I thought he had a gun,” even though, of course, the police have guns, but also because the cop’s life is valued in a way that hers is not. If she is a victim of domestic violence by the police or a sex worker or even a grandmother being beaten on the side of a highway like Marlene Pinnock, the black woman cannot kill the officer based on the very real threat to her own life.
“African Americans have more to actually fear from the police than the police have to fear from them.”
Legal settlements do nothing to prevent murders. They only serve to transfer the risk of policing unto the backs of tax payers or unto the insurance policy the municipality may have for such occasions. The police officer herself does not feel that pain as it is not their money. Terminations for killing only results in the cop being able to apply for a job somewhere else. For the killer cop, in particularly where the victim is black, there is no real penalty for his actions. The officer is further protected in law because many, if not all, states have made it a crime punishable by death to kill a member of law enforcement. Literally, a citizen does not a have the right to protect herself from being killed by law enforcement under these laws. Yet, the right to save one’s own life is a basic, universally recognized right for every living thing on the earth. And it has no qualifiers in international law. That is to say, one has a right to preserve his own life against anyone, no matter who it is. This right is expressly granted to the police, but it is only qualifiedly applied to anyone else. That is, the cop can kill, be investigated by his peers and keep his job, but the citizen who kills a cop can be arrested, tried and only through a judicial process can her actions be deemed justified or not. Therefore, through legislative sleight of hand, the police have placed their lives above the lives of average citizens, in particular black and brown ones. States have enacted laws that make it a penalty to even resist the police, whether their actions are lawful or not. Whether one agrees or disagrees with these laws, the end result is that the people who have assumed the risk inherent in their work, who society has outfitted with all types of gadgets and weaponry, and who have also been insulated by law, are also placed in a superior status above everyone else. That superior legal status is particularly pronounced relative to the Dred Scott quasi-personhood status of African Americans.
“The law should recognize that it is better for one police officer to die in the course of their duties that she has voluntarily assumed, than it is for one citizen to die without due process of law.”
The main institution that can rectify or at least ameliorate the risk of being Black in America is the political/legal system itself. Judges, prosecutors and legislators can choose to accept that the assumption of the risk doctrine applies solely to the police in the context of their daily interactions with the public. In the criminal law system, the old saying is that it is better for a guilty man go free, then it is for an innocent man to go to jail. This doctrine, although imperfect, should also apply to law enforcement. They have voluntarily accepted the risk inherent in their occupation and society, including while operating in Black America, and society has armed them for this risk through taxes. Therefore, the law should recognize that it is better for one police officer to die in the course of their duties that she has voluntarily assumed, than it is for one citizen to die without due process of law. These are difficult policy choices for legislators, judges and prosecutors to make, however, it should be more unconscionable and unbearable to elected officials and judges to see black and brown people being brutalized and killed by the police without ever receiving the constitutional protections that they themselves have sworn to uphold and administer. Judges should be absolutely appalled that an accused Black citizen will never appear in their court to be tried by a jury of his peers and to have adequate legal representation, because the police have killed the accused. Additionally, prosecutors and judges should be asking why are cops killing anybody at all. The role of law enforcement should be to effectuate an arrest and leave the punishment to the skills of the prosecutor, the zealous advocacy of the defense counsel and the faith of the jury. Anything more than that on the part of the police should be held to a strict scrutiny standard of review and investigated with precision by an independent entity and roundly condemned by the political/legal system.
“The lack of trust by African Americans of the police has absolutely no bearing on the conduct of the police.”
The idea that the police have a right to beat people up in the course of their duties must be completely, unequivocally rejected. The false issue of “trust” between black and brown communities and the police is really a red herring to foster even greater acquiescence to authority than Black people have already given in to. There is no issue of mutual trust when one party can legally kill the other. The historical and present day reality, is that there is simply no reason for black and brown people to trust an institution that profiles, arrests, stops and frisks, beats and kills them. Additionally, the lack of trust by African Americans of the police has absolutely no bearing on the conduct of the police. That is to say, law enforcement officers are not asking black people if they trust them before they kill them. This is nonsense and has no legitimate place in political discussions about policing. Lawmakers can choose not to pass the so-called “Blue Lives Matter” bills, which, makes it a hate crime to kill a police officer or their families. They can repeal segments of the far too dense criminal code, which makes nearly anything a citizen does an infraction, misdemeanor or felony. The adoption of laws that regulate nearly every aspect of life in America arms the police with a legal justification to stop or arrest people for violations of these laws. Since laws regulate behavior, a free society does not need to regulate its people to such a degree. Food for thought on whether this is a free society.
The reason the police are called “law enforcement” is because politicians make laws to be used against their own constituents. Rather than giving the police more tools and protections, lawmakers should focus on ensuring that the constitutional protections afforded to Americans are carried out instead of being weakened by judicial opinions and legislative actions. The weakening and gutting of the Fourth Amendment by the judicial branch can just as easily be restored by the same branch. These are all political issues that can be accomplished with political actions. However, those who face the greatest risk of death or injury in an unjust legal/political system must lead the charge and make concrete, enforceable demands given the stakes at hand. The supposed fear of black people by law enforcement has led police departments to arm themselves to the teeth and to ask the political/legal system for greater resources to protect themselves. It is high time that our own justifiable fear lead us to do the same and make concrete demands for the protection of our lives.
Attorney Bryan K. Bullock practices law in Merrillville, Indiana.