Excerpted From: Omavi Shukur, The Criminalization of Black Resistance to Capture and Policing, 103 Boston University Law Review 1 (February 2023) (337 Footnotes) (Full Document)


omavishukurGeorge Floyd, the black man whose murder at the hands of a white police officer sparked a global uprising, was not killed solely because he was black; instead, he was killed as punishment for his black resistance to the capture of arrest.

Had Floyd successfully thwarted the deadly police assault against him--and survived to tell the tale--then he could have been prosecuted for the criminal offense of resisting arrest, which is punishable by up to five years' imprisonment in Minnesota, where he was murdered. Other highly publicized police killings of black people, such as the killings of Korryn Gaines, Eric Garner, Patrick Lyoya, and Tyre Nichols, similarly involved acts of resistance that could have been the subject of criminal resisting arrest charges--had they not ended in the tragic loss of life. Moreover, black people are charged, prosecuted, and punished daily for resisting arrest during nonfatal police encounters that do not make their way to the headlines. And yet, in the yearslong, race-conscious postmortem of the fatal tragedies mentioned above, the criminalization of resistance to arrest has not been adequately contextualized in the black experience.

In light of the broad consensus that the criminal punishment system is racially subordinating, dissenting violence against policing--and the criminalization thereof--must be meaningfully engaged with in order to more fully understand the antiblack dimensions of policing. Further, this deeper understanding should inform how these antiblack dimensions are eradicated.

Criminal anti-resisting laws generally proscribe physical resistance to law enforcement officers attempting to make an arrest. For example, New York's anti-resisting law provides, “A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest.” anti-resisting laws such as this are remarkable, in part, because they punish people for defending their bodies from capture, provided a reasonable person would think the capturer is a law enforcement officer using “reasonable force” to effectuate an arrest. They exclude physical defense against capture from the realm of reasonableness and bring it into the sphere of criminality. Put differently, they, with very little exception, demand submission when faced with the ostensibly “reasonable” force of law enforcement. In most jurisdictions, even someone who resists an unquestionably unlawful arrest can be arrested and convicted for resisting arrest; in other words, the unlawfulness of the arrest neither justifies nor excuses the resistance thereto.

This Article provides a conceptual framework that interrogates the normative assumption that resisting arrest and policing violates a sacrosanct social contract and is thus rightfully punishable. In doing so, this Article disrupts the mental image of the atomized individual resisting law enforcement in a vacuum. It does this, in part, by centering a particular genre of resistance: black people's ongoing physical rejection of slavers' and state actors' attempts to capture, arrest, and exert control over black bodies. Specifically, attention is drawn to the black experience of being subjected to capture and anti-resisting laws during the time of chattel slavery and in the current era of racially subordinating policing. This racial contextualization suggests that black resistance to the capture of arrest constitutes, in part, dissenting violence against racial subordination.

Moreover, this contextualization illuminates how the state's punitive response to this black dissenting violence deepens black racial subordination and hardens white social dominance. By drawing attention to the antiblack dimensions of past and present anti-resisting laws, this Article contributes to the collective project of illuminating “criminal law's role as a mechanism for social control and provides a specific context to illustrate how that social control takes place.”

For instance, during the Colonial and Antebellum Eras, legislatures empowered white people to use force against black people who physically resisted their attempts to investigate or capture them on suspicion of being runaways. Much later, most states adopted laws criminalizing resistance to even unlawful arrests after masses of black people violently rebelled against racially subordinating policing during the mid-to-late 1960s. The historical account detailed herein uncovers how the perceived rupture presented by the repeal of anti-resisting slave codes masks the continuity of racially subordinating anti-resisting laws and enforcement.

The focus on enslaved Black captives and their descendants is not meant to discount the use of anti-resisting charges to criminalize and punish myriad marginalized populations (such as the neurodivergent, indigene, brown, and black people whose forebears were not enslaved in the Americas). Rather, the intention is to consider the terms in which a particular history of domination rooted in the conquest of black bodies becomes meaningful today.

The case of enslaved Black captives and their descendants is singular in that the capture of black bodies was constitutive of both their group identity (i.e., blackness) and of the United States itself. The continuity of dominative capture and the resistance thereto may, in fact, mark a unique contestation over the legitimacy of the United States' claim of sovereignty over black bodies and the content of blackness. Put differently, whether blackness should be determinative of submission or resistance. Each act of resistance may be read as a challenge to the dominant, and thus a disruptive, refigured articulation of blackness “in terms other than abjection.”

Ultimately, this Article calls for a shift away from the state's punitive responses to black resistance to policing, and toward remedial, nonpunitive responses. Such transformative responses range from reducing resisters' social alienation to guaranteeing housing, healthcare, and a universal basic income.

This Article proceeds in three Parts. Part I discusses the need to comprehensively contextualize the criminalization of resistance in the experience of enslaved Black captives and their descendants. Part II examines three antiblack dimensions of anti-resisting laws, namely, their reinscription of fraught antebellum racial relations of power; their expansion as part of the frontlash against the Great Migration, the Civil Rights Movement, and black-led urban uprisings against racial subordination; and their requirement that black people surrender their bodies to modern racially subordinating policing. Ultimately, Part III argues that there is a need to shift society's response to black resistance away from punitive criminalization and toward transformative instigation to eradicate the harms animating said resistance.

[. . .]

The American story of enslaved Black people's descendants begins with the capture of enslavement. For many victims of police violence, such as Eric Garner, Korryn Gaines, and George Floyd, this story ends with a police officer's fatal attempt to capture their black bodies. Throughout the American story of enslaved Black people and their descendants, racial subordination and white social dominance have defined the racial power relation of white-over-black. Criminal law and enforcement has been a potent means of inscribing and reinscribing this fraught power relation. The central practice of law enforcement is the capture of people for fabricated, suspected, and actual violations of criminal laws that are designed by white-dominated federal and state governments. Thus anti-resisting laws amplify white social domination of black bodies and deepen black subordination.

This conclusion raises several questions beyond the scope of this Article: What are the antiblack dimensions of criminal laws prohibiting collective, as opposed to individual, black dissenting violence? How should the antiblack dimensions of anti-resisting laws inform affirmative defenses thereto? Is there a constitutional doctrinal fix to the antiblack maleffects of anti-resisting laws? These questions evince the fertileness of this area of inquiry.

The durability of the black practice of resistance to the capture of arrest demonstrates that enslaved Black captives and their descendants have never uniformly surrendered to white social dominance. Black dissenting violence against racial subordination antedates the Constitution of the United States and lives on through ongoing resistance to racially subordinating policing. This resistance can only be eradicated if its impetuses are abolished. Until then, white-dominated federal and state governments will continue to deploy law enforcement on the fool's errand of quashing black resistance by deepening black resisters' subordination.

Lecturer, Research Scholar, Columbia Law School; Adjunct Professor, New York University School of Law. J.D., Harvard Law School; B.A., Columbia University.