Above The Fray

By Patricia J. Williams

“I tried but failed to ward off the second bottle of champagne,” begins David Brooks’s much-derided essay in the November 15 issue of the New York Times style magazine, T. Entitled “My $120,000 Vacation,” the piece recounts his genteel discomfort with the Four Seasons’ opulent “new 24-day, round-the-world fantasy trip.”

His heart is really in the right place, sort of: “I tried to protest,” Brooks says of that champagne. “Sometimes it is the structure of things that you shall be pampered and you have no choice but to sit back and accept that fact.” Indeed, the velvet ropes and fur- lined handcuffs of “Turkish delight,” Russian caviar, and “tray of figs” render him helpless: “Other sweet moments came when I just said what the heck and enjoyed the self-indulgence.” After all, “we all have a responsibility to reduce inequality in our society. But maybe not every day.” In any event, Brooks notes, “it’s one thing to say you should have an authentic travel experience with the people, but sometimes sitting for four hours on the floor of the Casablanca airport is just a useless pain.” And so the Four Seasons trip offers “staff at every stop,” who occupy themselves with filling out customs forms, carrying luggage, and delivering envelopes conveniently filled with the local currency.

It was rather unfortunate that Brooks’s piece was published while the world was still numb with shock after the devastating attacks and loss of life in Paris. It was perhaps doubly unfortunate that the article has received much more attention than the horrific pair of bombings in Beirut, Lebanon, that took more than 40 lives just one day before the Paris attacks. Of course, it would have been just as unfortunate had it been published a few weeks earlier, when a US gunship attacked an Afghan hospital, resulting in the deaths of at least 30 doctors, nurses, and patients. It was also unfortunate when Brooks observed that his voyage of 24 days might, in the “commercial” world, have taken 90—for it was left glaringly unspoken that in the less-than-commercial world of desperate diaspora, such a trip would probably take many lifetimes as well as lives. And it was altogether unfortunate that the Four Seasons’ sleek, “fast- moving bubble” of luxury presented such a stark contrast with the rhetoric of walls, fences, drownings, rapists, parasites, animals, human garbage, and expulsion dominating the political debates over migration in the rest of the week’s news.

Brooks’s smooth glide upon a “vapor trail of…hospitality” was not just a “fantasy trip,” but premised upon fantastical presumptions about the real world. When he observed that his fellow travelers were hard-working ordinary folk—“the lower end of the upper class,” who “treated the crew as friends and equals and not as staff”—I wanted to start humming the theme from Driving Miss Daisy. This is a narrative arc whose symbolic disconnects ought to have been extinguished forever when George W. Bush flew over the devastation left by Katrina and claimed that he felt New Orleans’s pain. It is a narrative whose darker, sharper edge was on display when the Times’s own former reporter, Judith Miller, responded to the Parisian catastrophe by tweeting: “Now maybe the whining adolescents at our universities can concentrate on something other than their need for ‘safe’ spaces.” All this, in a world of such horrific violence that all any of us desires is the geography of safe space. As Vijay Prashad wrote of François Hollande’s commitment to wage war on the ideological evanescence of ISIS: “Macho language about ‘pitiless war’ defines the contours of leadership these days. Little else is on offer. It is red meat to our emotions.”

But high end or low, life on this exhausted planet with its wandering, traumatized populations is rapidly imposing equality on us all. One must wonder what happens if the global gaze of state surveillance is further deployed to “restrict liberties in order to defend liberty,” as Judith Butler wrote in a letter from Paris titled “Mourning Becomes the Law.” The years since 9/11 and the invasion of Iraq have seen an exponential growth in the industries of surveillance and in the confinement of our own gaze. Take “black sites,” for instance: Not only acts of terrorism, but much-too-easy acts of official suppression, can flip a switch and turn the City of Light into a site of darkness.

Data artist Josh Begley is perhaps best known for his conceptual work Dronestream, now renamed Metadata+, an app that sends a push notification for every reported drone strike made by the United States in Pakistan, Yemen, Somalia, and other war zones hidden from American eyes. His succinct summaries of the strikes are jarring: “Fifteen people were on their way to a wedding when a US drone ‘missed its target’ killing 15.”

That small act of looking has made the app the object of repeated attempts to shut it down, not only by the US government, but by Apple and its subsidiary iTunes—most recently in September. And across the globe, nations are enacting measures like Spain’s new “gag law,” which prohibits demonstrations near government buildings, or photographing arrests, or using Twitter, Facebook, and other social media to call on people to protest.  Begley’s app, conversely, insists on the magnitude of human loss: What if no one cared, or even saw the places where you had lived or to which you had fled? What if no one saw those places where there is no one left to mourn?

Begley is also the creator of Prison Map, a collection of aerial photos of federal prisons across the United States. The style of this work echoes similar photos of formal gardens and great cathedrals; the panopticonic layout of America’s prisons resembles nothing so much as Versailles. From space, even the moated communities of the ultra-rich seem identical to those of the incarcerated poor. Expats, tourists, migrants, the imprisoned, and the self-contained: There is a doomed sense of equality between the view from above and the despair below. •

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 How Could Tamir Rice’s Death Be ‘Reasonable’?

Imaginative legal reasoning deals a real blow. By Patricia J. Williams

OCTOBER 15, 2015

In a world of complex and systemic violence, legal reason sometimes follows an imaginative narrative arc.

Take the case of Charles K. Goodridge, a computer programmer in Texas, who sued Hewlett-Packard, his employer of nearly a decade, for racial discrimination. He lost his job as part of a settlement in that case. Already in his late 40s, he was unable to find other regular work and was eventually evicted from his apartment. As Anand Jahi, Goodridge’s cousin and a graduate student at Princeton, wrote in YES! Magazine, “economic devastation turned him into a trespasser.” And so, early on the morning of July 9, 2014, Goodridge was discovered in the fitness center of his former building by Francisco Ruiz, an erstwhile neighbor and off-duty county constable who moonlighted as a security guard for the complex. Ruiz returned to his apartment to retrieve his gun and a set of handcuffs. He then chased Goodridge into the parking lot of the complex, where, according to the Harris County DA, he “became fearful that Goodridge was going to take his gun and kill him with it, so when he gained some distance from Goodridge, Ruiz pulled the gun and shot [him] twice” in the abdomen. A grand jury failed to indict Ruiz for this act.

This much of the story might never have become more widely known but for a recently circulated video, from the dashboard camera mounted on a responding police car. It shows the police failing to administer any first aid whatsoever, ignoring the injured Goodridge for nearly half an hour. What attention he does receive is brief but shocking: In what appears to be a much- delayed afterthought, an officer casually walks over and roughly yanks the limp, prostrate, gravely wounded man onto his side to be handcuffed. At another point, Goodridge raises his head, and a deputy uses his boot to press Goodridge’s face back onto the tarmac.

Goodridge bled to death from wounds that an independent pathologist said he might have survived if he’d made it to surgery sooner. As The New York Times reported in a masterpiece of understatement: “The treatment of Mr. 
Goodridge illustrates complicated issues of policing, compassion and medical care on which there is little consensus on proper police procedure.”

This story came to light at about the same time that Cuyahoga County prosecutor Timothy McGinty released two reports by hired experts declaring that the shooting death of Tamir Rice was “objectively” and legally reasonable. Rice was the 12-year-old killed by Cleveland police after a passerby called to report a “juvenile” who appeared to be brandishing a gun that was “probably fake.”

In life, Rice was a jocular, good-natured kid who, though marked as a “special education” student, was deemed “no trouble.” He was well liked by his teachers and mentors, and hung out with his big sister every day after school at the rec center on whose grounds he was killed. Rice was overweight—at 5-foot-7, he weighed 195 pounds—and a bit shy, having been persistently bullied by some of his peers for wearing the same stained and dirty clothes day after day. Those who knew him said that he’d traded his cell phone for a friend’s airsoft-pellet “toy” as a way of pretending to be tougher than he was.

The passerby’s call was reductively translated by a police dispatcher to the responding officers as a “black male” in the park “with gun.” Videos show that in under two seconds, Officer Timothy Loehmann, a rookie with less than a month on the job, pulled his gun and fired twice, striking Rice once in the abdomen.

From that moment on, Tamir Rice was referred to as “the suspect” in nearly all of the investigative documents except for the forensics report, where, at last, in the offices of death, he is listed as a “victim.”

The problem of translation haunts every aspect of the telling. Rice was generally described by neighborhood witnesses as a kid or a “little boy.” The responding officers, on the other hand, described a man of advanced years and exceeding size such that, when Rice arrived in the emergency room, the medical team was unable to intubate him: Based on “pre-hospital information” (or police descriptions), “tube selection was for an adult male” and was too large to bypass his vocal cords. “Rather than delay for a second attempt, decision made to transfer to OR”—where Rice hemorrhaged to death by early the next morning.

Regarding the much-asked question of why the police didn’t shoot to disable rather than kill, Kimberly Crawford, one of the hired experts and a former supervisory special agent for the FBI, dismisses such expectations as “Hollywood.” Besides, she adds, “whether Rice looked his age or not is irrelevant to the determination of reasonableness.” She quotes the Seventh Circuit case of Pena v. Leombruni: “Very little mentation is required for deadly action. A rattlesnake is deadly but could not form the mental state required for a conviction of murder.” This, Crawford says, “is not to suggest that law enforcement officers would shoot a toddler with a gun. Most law enforcement officers would rather take a bullet than shoot a toddler. However, Tamir Rice was… perfectly capable of inflicting death or serious physical injury.”

That perceived capability underwrites our repetitive American tragedy. The black superpredator. Our enchantment with guns. And, of course, the ubiquitous fear of rattlesnakes.

Crawford writes that “the question of whether [the officers] could have avoided the situation had they used better tactics is one that is worthy of consideration from the perspective of policy and training,” but warns against “armchair quarterbacking.” She quotes Smith v. Freeland, a Sixth Circuit case, for the proposition that “we must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.” With Tamir Rice’s sunny, shortsighted, little-boy existence thus assigned to the realm of a sanitized imaginary, his death may be deemed “objectively reasonable.” •

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What Do You Get When You Remix the Confederacy for 2015?

Hint: It’s not just biscuits and magnolias. By Patricia J. Williams


It was flying from the back of a souped-up pickup truck: the largest Confederate flag that I have ever seen, big as a bedspread. Across the center of the Battle Flag was emblazoned the image of a gigantic black assault rifle; across the bottom was written a challenge: Come and take me. I watched the truck proceed down the freeway like a perverse Mardi Gras float; it emerged from the peripheral field on my left side, whipped past, then continued down the highway and away, through the mountain pass beyond and into the V-shaped cleft of the horizon.

This happened in August, a busy month for racial conversation: the March on Washington, Hurricane Katrina, Michael Brown’s death. This also happened within days of Elisabeth Hasselbeck’s apparent attempt to Willie Horton–ize #BlackLivesMatter in time for the next election by labeling it a “hate group.” It was just days after Megyn Kelly’s assertion that black communities are “anti-cop. It’s sort of—people have called it the ‘thug mentality’…. That it’s cool to sort of hate the cops…and be somebody who doesn’t necessarily prize being there for your family, and so on.”

That fiercely flapping flag I saw was a mash-up: a remix, a derivative conjoining of different elements to make a new whole. I read those elements as misplaced belligerence about the “War of Northern Aggression” (we were, after all, in the North, a mere hour’s drive from the Canadian border) and a scary degree of allegiance to dark, murderous machinery.

At home later that evening, I chanced upon a YouTube video: an ad for BuyConfederateFlagsFromaBlackGuy.com. The video advertises, in the words of James Joiner in The Daily Beast, taking “some of the guilt out of flying your colors by giving you good ol’ boys and girls the chance to shoot down that pesky racism argument right out of the gate—by supporting a black-owned business. It’s like having a ‘best friend who’s black,’ only better,” because you can order online and needn’t come into contact with anyone outside your “racially pure bloodline.”

The site is parodic—but truth be told, it’s hard to tell sometimes. After all, George Zimmerman is selling his paintings of the Confederate flag to support a “Muslim-free” gun store in Florida. And there are a few African-Americans who seem genuinely content to be standard-bearers for the antebellum South: Byron Thomas, a black undergraduate at the University of South Carolina, is rumored to have been offered membership in the Ku Klux Klan after waging a brave fight to display the Confederate flag in his dorm.

I have nothing against Southern heritage. If it’s down-home, Southern Gothic nostalgia you want to celebrate, then by all means, mash up a flag to that: perhaps one with buttered biscuits, toddler tiaras, and cottonmouth snakes all nestled against a field of magnolia blossoms.

Seriously: It’s not the Southern romance but the Confederacy with which I have a problem. But the Confederacy, as bears reminding, lost the Civil War. The American flag—the one to which we make a pledge of allegiance—is the flag of the United States. That’s a dispositive legal distinction, not a whimsical or emotional one. The Confederate flag stands for the Confederate Constitution, which was virtually identical to the US Constitution but for one really important sentence: “No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed.”

The mash-up of that message with an assault rifle is why I drove quite slowly behind the enormous pickup truck, letting the distance grow between it and me. I slowed my car intentionally to let the truck race on, backward into the future.

Recently, I heard Ashraf Ghani, the president of Afghanistan, hold forth in a nuanced discussion about borders, national identity, pluralistic pedagogy, so-called philosophical untranslatables, and the linguist Roman Jakobson’s concept of marked and unmarked terms. It was so impressive and sophisticated that I confess my brain wandered sideways to a parallel universe in which any given American politician brought such insight to the crisis at our own borders. We need more than Donald Trump as American interlocutor in these crucial global debates. It was this sad thought that weighed on me as I drove slowly in the wake of that enormous Confederate death threat, cowering at what ex post facto bill of attainder might await around the bend.

Black lives matter. Confederate lives matter. Mexican lives matter. Syrian lives matter. Iraqi and Turkish lives matter. Christian, Jewish, Muslim, and Buddhist lives matter. Police lives matter. Swedish lives matter. Cecil the lion’s life matters.

But power matters too.  The structures of civil society matter. And when we conflate the ideal of all lives mattering in a way that suppresses knowledge of the decidedly different ways our bodies are received as we cross from neighborhood to neighborhood, nation to nation, one social setting to another…well, some of us are apt to drown, capsized in the seas of untranslatability. When we ignore the ethical responsibilities of power and its exercise by labeling dissent as “hatred of us,” we avoid the hard question lurking just beneath the surface: who defines “us”?

The reality of our resource-stretched, ecologically-degraded, desperately diasporic and war-torn globe is that populations are increasingly arranged as a matter of public policy and government force along polarities of raw survival: Life or death. Legal or illegal. Refugee or economic migrant. Rich or poor. Northern or Southern. We struggle for ground and bread and fresh water. We draw down the gates, pull up the drawbridges. We pray and pack in for a place on the freedom train—which grinds to a halt when “they” climb aboard. We take each lost life and stack it as a win or a loss.

All lives do not matter when we must sort the dead by sides.

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On Imperfection and Its Comforts…

Review:  Roxane Gay’s Bad Feminist
Patricia J. Williams

Short Takes: Provocations on Public Feminism, a new online-first feature of Signs: Journal of Women in Culture and Society, offers brief comments from prominent feminists about a book that has shaped popular conversations about feminist issues.

The forum on Bad Feminist will appear in print in the spring 2016 issue of Signs.


Bad Feminist is the musing of a strong but lonely intelligence. Roxane Gay grew up as the daughter of conservative Haitian parents, almost always the only black kid in her school, always reading, always yearning to be popular, always wishing she were … not a bad girl precisely, but just a little less good. If the question is why this book and why now, I think the appeal lies in Gay’s casually colloquial yet highly intellectual takedowns of everything from competitive Scrabble tournaments to Lena Dunham’s Girls. Moreover, since debates about gender, race, and feminism are so often ponderously vexed—all but deadlocked before they leave the gate—Gay’s tone is refreshing. Her writing is funny, smart, accepting, kind. She is unafraid to admit her own inconsistencies, like her ability to “take pleasure in something so terrible” (199) as the terribly written Fifty Shades of Grey.

Gay does not set out to write a “revolutionary” book about contemporary feminism—she explicitly rejects the hyperbole of greeting every singular act of empowerment as such. Indeed, there is nothing new about most of her topics: rape, equal pay, the segregated cultural landscape of television and film. These are fields of inequality that have consumed us for at least a century. But while she analyzes situations that are all too sadly familiar to readers of any generation, her lens is very particular to her own.

I grew up in the generation of women breaking free from the Barbie-doll world of Mad Men. The feminist movement of my time was explicitly if diversely political—from Bella Abzug to Angela Davis to Mary Tyler Moore, and there was at least some common aim at accepting our bodies, ourselves. There was as well at least some common aim of escaping confinement—whether corsets and girdles or marital expectations and limitations in employment. In retrospect, it seems cloaked in a kind of lost optimism, an inevitability of the coming of a world of multifaceted “choice.”

In contrast, Bad Feminist speaks to the experiences of young women who have grown up with much meaner messages playing in the background: Real Housewives of New Jersey, Basketball Wives, Victoria’s Secret models’ diets, Fox News and Flavor Flav. Young women, if they are weaned on television or social media, are growing up inside the kinds of men’s brains who imagine women as perpetually mud-wrestling, always in warring tribes, using the spike heels of their fuck-me pumps to do lasting injury in showdowns in expensive restaurants. That masturbatory vision is everywhere, has been technologically enhanced, is hard to escape. Slut shaming and revenge porn have become new forms of old disciplinary practices, and civility among all humans, regardless of sex or gender, has broken down in increasingly dangerous and invasive ways.

Meanwhile, the rejected aesthetic of conical bras or underwear in which you couldn’t breathe seems to have been replaced by aesthetic endurances of a far more painful nature: dressing up occurs within a cultural bell jar of peculiar insistence that the life of the mind be inscribed on the body—tattooed onto it, pieced through it, or surgically altered—in order to be heard.

Gay speaks to the mean-spirited perfectionism that so many young women must deal with today. The book is peppered with the vocabulary of a generation many of whom don’t know who Shirley Chisolm or Gloria Steinem are—words like “crappy,” “asshole,” “drama,” and “divas”—yet Gay’s message remains quietly humane, gently humorous. It is an instruction manual for the postfeminist, post–Ms. Magazine, post-peace-and-love crowd. Bad Feminist is Miss Manners for messed-up millennials.

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By Patricia J. Williams

I spent July 4 at a social-justice retreat in rural Washington State, driving up into the mountains with a group of colleagues through spectacularly picturesque small towns bright with fluttering red, white, and blue banners.

“There’s a wonderful general store here,” one of my friends told me as we pulled in for gas along the way. “You’ll love the place and its genuine old-fashioned charm.” I like old-fashioned as much as the next, so while the rest of the company peeled off to get pizza, I puttered my way across the road and pushed open the creaky wood- frame door to the friendly sound of jangling sleigh bells hung from the knob.

The reception inside, however, didn’t match that warm, silvery welcome. A little girl of about 5 or 6 who’d been coloring on the floor looked up. I smiled; she scowled, gathered her crayons, and huffed over to her mother. The mother, who was doing what looked like accounting at a round oak table, glanced at me, frowned, and refused to make eye contact. There was another woman behind the counter who eyed me with such apparent hostility that I almost turned and left on the spot. But then I thought, “I’m projecting. They’re having a bad day—it has nothing to do with me.”

So I put my head down and wandered around, looking for the charm rather than the chill of an earlier era. “Excuse me, please,” I asked the woman monitoring the cash register, feeling that careful politeness might warm things a bit. “Do you have ice cream?”

“Yer looking at it,” she snarled without moving. Flushed with humiliation and feeling accused somehow, I scuttled sideways toward the exit. Just then, one of my friends walked into the store. “Hello, mister,” piped up the little girl cheerfully. Then another of the party came in. “How can I help you, sir?” asked the woman behind the counter. As my friends and the cashier engaged in a somewhat giddily suggestive discussion of various sausages, I slipped out quickly and retreated to the car.

It’s hard to figure out exactly what accounts for the difference in our experience. I’m an old, gray-haired black woman; my friends were younger white men. I felt it had to do with race, but it could have been age, or gender, or something random. It wasn’t like they were flying the Confederate flag.

There’s just no way to know, we told ourselves. We moved on to other things.

Wending our way along the mountain roads, we traveled through terrain not so different from that of Pasco, just on the other side of the Cascades. Pasco was the scene of a police shooting early this year that has left Washington State bitterly divided. Last February, Antonio Zambrano-Montes, a migrant farmworker from Mexico who’d apparently taken an ample dose of amphetamines, went on a rock-throwing spree in downtown Pasco during rush hour. Cellphone videos taken by bystanders reveal him in a state of considerable incoherence and distress: weaving off balance, running in circles, flinging rocks and gravel at cars, passersby, police. The images show the police first trying to tase him, then shooting at him. Zambrano-Montes runs across the street to the front of a busy supermarket, three officers in pursuit. The police shoot again, this time a larger volley. He falls to the sidewalk, and they circle his body for a few moments before handcuffing his limp arms behind his back.

On July 1, the last of a series of documents was released in connection with a much-delayed follow-up report on the shooting. Included were eight videos, each taken from a slightly different angle, all available for public viewing on YouTube; from no perspective does it appear that anyone deserved to die. Zambrano-Montes seems guilty of obstreperous (if fairly ordinary) disorderly conduct. But what’s most astonishing about the encounter—which took four minutes from beginning to end—was the utter lack of police discipline: a Wild West rampage on a public street during rush hour. Seventeen bullets were fired in all. As many as seven entered Zambrano-Montes’s body. Six more were retrieved from the walls of the supermarket, a gas station, and a vending machine. Four were never found.

If I personally find it hard to imagine what might justify such a response, the statements from the officers and some witnesses tell a radically different story. “He was willing to do anything he could to get me to shoot him,” said Officer Adrian Alaniz. “He wanted to die,” said someone who knew Zambrano-Montes at the local homeless shelter. According to one bystander, he looked like a “caged tiger.” Police told investigators that they consider rocks to be deadly weapons—“one rock can kill you”—and that it was “a life-and-death” situation. When asked why they decided to fire on a man who was running away from them, Officer Ryan Flanagan explained: “I wasn’t chasing him down to shoot and kill him. But he wasn’t going to get away, either.”

Flanagan resigned from the force about two weeks before the report’s release. The county coroner has called for an inquest, but that won’t start until September at the earliest. As of this writing, there has been no decision on whether to bring charges against any of the officers. Franklin County prosecutor Shawn Sant has stated that the final decision on whether the shooting was justified “would not come soon.”

It’s hard to figure out what accounts for such differences in perspective. But as long as we live in a culture with such aggressively policed boundaries of social division—whether age, gender, race, accent, or class—our individual experiences at the general store of our humanity will always be at odds. What manifestation has just come lurching through the opened door: a lady or a tiger? Is there really just no way to know?

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What No One Is Saying About the Cleveland Police Shooting Case

The Nation Magazine, June 15, 2015

by Patricia J. Williams

O n May 23, Cuyahoga County Judge John O’Donnell exonerated Cleveland policeman Michael Brelo, who had been charged with voluntary manslaughter in the deaths of Timothy Russell and Malissa Williams. The facts of the case, as recounted in the judge’s lengthy opinion, are these: Russell and Williams were driving in a 1979 Malibu when, at about 10:30 on the evening in question, they were stopped by an officer who says that Williams shouted out the window, “What the fuck did we do this time?” In O’Donnell’s less-than-coherent description, the officer then “decided not to pursue the stop, which he initiated after Russell turned left without a signal because he had seen Russell do a possible drug deal a few minutes earlier outside the nearby men’s homeless shelter.” That officer “returned to his duties without telling anybody else of the encounter.”

Moments later, and two miles on, Russell and Williams were driving past a police station when two officers standing outside heard a sound they thought was gunfire and gave chase—a chase that lasted 22 miles, involved speeds exceeding 100 miles per hour, and was joined by 62 police cars and over 100 officers. As expressed in bulletins along the way, the police thought that “two black males” were in the car, that one was “pointing a gun out the back window” and then “possibly loading a weapon.” It’s worth underscoring that all of these assumptions were wrong. No proof of a drug deal was ever produced. The occupants of the car were a man and a woman. The sound that the officers heard was apparently the Malibu backfiring, since both Russell and Williams were unarmed.

The chase finally ended when Russell drove down a dead-end street—or, in Judge O’Donnell’s evocative words, “down a road that, seen from above, looks like the barrel of a gun. Russell raced into that gun barrel….” It’s worth noting that the entire world is often unreasonably gun-shaped to those who spend too much time with weapons. For example, the officers acquitted in the beating of Rodney King—also after a car chase—described his body as being “cocked” like a gun even when he was lying bloodied and broken-boned on the ground. As the police converged on Russell and Williams, they fired 137 shots, 49 of which came from Officer Brelo’s gun. The final 15 were discharged when he leaped on the car’s front hood and shot directly at them through the windshield.

The legal logic that was to come brings to mind a study conducted by law professors Dan Kahan, David Hoffman, and Donald Braman after a black man was run off the road by the police and left paralyzed in 2001; he lost a controversial lawsuit against the department six years later. The researchers, in studying the divided public opinion about who was at fault, concluded: “We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities.”

Judge O’Donnell was certain about fault—or, at least, who wasn’t at fault. He wrote that Brelo had acted “out of conformity with police training,” was in a fit of passion or rage incited by his belief that he was in imminent danger, and that he “knowingly” fired shots that indisputably could have killed either Russell or Williams. But O’Donnell went on to say that there were so many officers firing that it was impossible to show that the deaths “were caused by Brelo’s bullets specifically.”

In coming to this conclusion, Judge O’Donnell invoked an analogy first posited by Justice Antonin Scalia in the 2014 case Burrage v. United States: “Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, [everyone] would agree that the victory resulted from the home run. By contrast, it makes little sense to say that an event resulted from…some earlier action if the action merely played a nonessential contributing role in producing the event. If the visiting team wound up winning 5 to 2 rather than 1 to 0, one would be surprised to read in the sports page that the victory resulted from the leadoff batter’s early, non-dispositive home run.”

In reading O’Donnell’s comparison of Brelo’s deadly volley to a “non-dispositive home run” in a sporting event, I wondered how universally applicable this might be. When rival biker gangs in Waco, Texas, fired hundreds of rounds at each other, leaving nine dead, 18 hospitalized, and 170 arrested, are we to anticipate the perpetrators’ mass exoneration because it’s just too hard to figure out who fired the bullets that actually killed someone? (The defendants in that case have already been charged with conspiracy under laws governing organized crime, and a massive forensic investigation is under way so that murder charges may be brought.) Judge O’Donnell put it this way: “Nor is it realistic to think that my conclusion will incentivize a group of police officers to fire as many bullets from as many officers as possible at a suspect in the hopes of obscuring the ultimate cause of the suspect’s death. The events of November 29, 2012 are sui generis and not likely to recur.”

I hope so. But there are plenty of people who believe that Russell and Williams “had it coming,” that they “needed killing,” according to some online pundits. There are others who believe that they committed “cop-assisted suicide,” and that the police were not the responsible agents of their death. And, of course, there are those who believe that the cops’ error-riddled perceptions of Russell and Williams were not the result of overreaction or poor training, but rather a sensible response to the existential-future-threat-imagined-as-immediate-possibility that life on “the mean streets” presents generally. As philosopher Brian Massumi says of the operative logic of such an existential threat: “Because the threat’s futurity is firmly held in the present, it short-circuits its own effect. It self-deters. This does not mean it ceases to operate as a cause. It means that its causality is displaced. It is no longer in a position to realize its original effect, annihilation. •

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Faith-based attempts to upend public accommodation laws are nothing new

By Patricia J. Williams

This article appears in the May 1, 2015 print edition of The Washington Spectator

Posted on May 1, 2015 in Culture, Legal Affairs, Politics, http://washingtonspectator.org/the-perverse-precedents-of-homophobic-bigotry/

As Republican presidential hopefuls race to embrace the “religious freedom” of businesses to refuse to serve the LGBT community, it’s worth taking a moment to consider the ideological history behind the laws that focused the nation’s attention on Indiana and Arkansas, and, of course, the glibly homophobic management of Memories Pizza.

Faith-based attempts to upend public accommodation laws based on the inherent sinfulness of certain others are nothing new. The civil-rights movement is underwritten by its successful refutation of the “right” of religiously premised belief systems to trump national interests in preserving equal access to civic spaces and publicly offered services. Today, we tend to think of Jim Crow’s legal barriers as merely the expression of secular prejudice. But de jure segregation reflected pervasive religious beliefs in the inequality of races and divinely commanded social order.

The case of Bob Jones University v. United States is perhaps the best-known example of the effort to assert First Amendment religious freedom of expression (in addition to freedom of association) as justification for exclusion. Until 1971, BJU had barred admission to African Americans, and offered only limited admission to other minorities. Then, in 1971, under pressure from the civil-rights movement, it began to admit only married African Americans.

In 1975, after further pressure, it allowed entrance of unmarried African Americans but still forbade interracial dating, and denied entry to “applicants engaged in an interracial marriage or known to advocate interracial marriage or dating.” In 1983, the U.S. Supreme Court revoked BJU’s tax-exempt status based on its racially discriminatory policies. Despite this, BJU resisted, based on assertions that God commanded separation of the races. And so it paid several million in back taxes and continued its exclusionary practices based on its freedom of expression under the First Amendment. It continued that policy until 2000, when George W. Bush kicked off his presidential campaign at BJU. The media uproar prompted its president, Bob Jones III, to nullify the ban on interracial dating, not on religious grounds, but so as not to haunt Bush’s campaign.

A second example is the 1925 case of State of Tennessee v. John Scopes. Scopes was a high school teacher prosecuted for violating the state’s Butler Act, which banned teaching human evolution in any public school. The law’s rationale was premised on fundamentalist dogma that Biblical literalism transcended all human knowledge.

That trial, best known as the “Scopes Monkey Trial,” is mostly remembered as a battle between science and pseudoscience. But it was also a battle between theological and secular justifications for notions of racial superiority. William Jennings Bryan, arguing for the creationist state law, resisted evolutionary theories that purported to teach children that mankind was descended “not even from American monkeys, but old world monkeys.” Not coincidentally, Bryan was a good friend of Bob Jones, the eponymous evangelist who founded BJU in 1927, in part because of Bryan’s urging.

While Clarence Darrow is remembered arguing on the more “liberal” side against the Butler Act, the deeper truth is that the secular beliefs of the time were not a lot better than the religious doctrine. The particular theory of evolution Scopes was accused of teaching came from Civic Biology, a textbook written by George William Hunter. Hunter believed, as many do to this day, that there were five distinct human races, representing an ascending order of evolution and civilization: Ethiopian, Malay, American Indian, Mongolian, and Caucasian. He was an enthusiastic defender of segregating each of the five, consistent with the tenets of the then-burgeoning American Eugenics Society and the theories of the infamous eugenicist Charles Davenport. Here’s an excerpt from Hunter’s textbook:

“Improvement of Man. – If the stock of domesticated animals can be improved, it is not unfair to ask if the health and vigor of the future generations of men and women on the earth might not be improved by applying to them the laws of selection. This improvement of the future race has a number of factors in which we as individuals may play a part. These are personal hygiene, selection of healthy mates, and the betterment of the environment.

Eugenics. – When people marry there are certain things that the individual as well as the race should demand. The most important of these is freedom from germ diseases which might be handed down to the offspring. Tuberculosis, syphilis, that dread disease which cripples and kills hundreds of thousands of innocent children, epilepsy, and feeble-mindedness criminal to hand down to posterity.

Parasitism and its Cost to Society. – Hundreds of families such as those described above exist today, spreading disease, immorality, and crime to all parts of this country. The cost to society of such families is very severe. Largely for them the poorhouse and the asylum exist.

The Remedy. – If such people were lower animals, we would probably kill them off to prevent them from spreading. Humanity will not allow this, but we do have the remedy of separating the sexes in asylums or other places and in various ways preventing intermarriage and the possibilities of perpetuating such a low and degenerate race.”

Darrow lost the case, and today we are still fighting about whether creationism may be taught in public schools.

Bob Jones University lost its case in the Supreme Court, but continued the battle until secular as well as religious public opinion had so shifted that it was forced to abandon its racialist policies. Perhaps Americans have reached a similar turning point regarding secular as well as religious intolerance toward LGBT communities: Indiana’s governor and Legislature met with such vehement resistance to the religious freedom law that they have been backtracking even after revising the law.

It was the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby that gave renewed life to Indiana’s arguments that religious belief can thwart principles of public accommodation. There, a narrow majority of the court allowed a family-owned corporation to refuse to pay for insurance coverage for contraception under the Affordable Care Act, holding that to do so would violate the owners’ religious belief that contraception is a sin. It was, as Justice Sonia Sotomayor observed, “a decision of startling breadth,” reopening a century-old debate about the rights of businesses or collectives to discriminate against citizens by cherry-picking among the laws they intend to respect.

The First Amendment protects both secular expression and religious belief in very broad ways. But that protection is not absolute. When belief carries over into action that disrupts either civil order or public safety, then public interest will outweigh even religious interests. We constrain, by law, expressions that communicate fraud, threats, conspiracy, treason, or second-class citizenship—even when those expressions are underwritten by religious beliefs. It is never an easy balance, but one we need to negotiate endlessly as an part of our political process: We are entitled to our beliefs no matter how wild or unsubstantiated, but not to impose them as obstacles or dangers to the constitutional rights of others. This much is a foundational value of public accommodation. We abandon that project at our peril.

Patricia J. Williams is a law professor at Columbia University and a regular columnist for The Nation.

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