Excerpted From: Ciji Dodds, The Rule of Black Capture & the Ahmaud Arbery Case, 14 Georgetown Journal of Law & Modern Critical Race Perspectives 31 (Winter, 2022) (509 Footnotes) (Full Document Requested)


CijiDoddsAn intimate and lurid form of cruelty, the incessant policing of black people is a necropolitical sport that evinces our country's built-in tolerance for lawless racialized violence. It is a form of play. people are treated as sub-human objects to be hunted, possessed, “toyed with and discarded.” This article argues that racialized policing and the related extrajudicial brutalization and killing of black people derive their legitimacy from the Rule of Black Capture. The Rule of Black Capture is one of society's unspoken and yet universally adhered to laws that was once overtly codified. Now, whereas America's legal system has been bifurcated into a de jure legal system comprised of race-neutral laws that operate at the surface level of society and a de facto legal system comprised of unspoken, white supremacist-oriented laws that operate beneath society's surface, the Rule of Black Capture has been codified in America's hidden, subterranean body of law.

The Rule of Black Capture (the “Rule”) is a three-part declarative rule that white supremacists created to exercise ubiquitous disciplinary power over black people. First, mere pursuit is sufficient to give a white supremacist the right to control and possess a black body. The pursuer may effectuate his right “without bodily touch or manucaption,” even if the pursuer is not “within reach or doesn't have a reasonable prospect of taking.” Second, a pursuer may justify any use of force as a legitimate means of enforcing or reconstituting the historical, asymmetrical power-relation between white supremacy and blackness. In the pursuer's mind, the power relation is enforced or reconstituted when the person is physically restrained, controlled, trapped, wounded, or killed. Third, black people have no right to “self-ownership,” and thus, no right to self-defense. Black people have an “obligation to conform” their instincts of self-preservation to their “condition of inferiority” and demonstrate reflexive obedience under all circumstances.

White supremacists did not create the Rule to determine first possession. From an existential standpoint, first possession was achieved when the White Lion, an English privateer ship, seized enslavedAfricans from the São João Bautista, a Portuguese slave ship, between 1618 and 1619. Instead, “[t]o recognize the right of property is to recognize the right of reclaiming it, and the duty of its restoration”; white supremacists wanted to recreate the thrill of the first capture and in each instance, to prove their ability to exercise their self-asserted right to possess and control the black body to the exclusion of the black person. Two governing principles lie at the core of the Rule: (1) perpetual control and possession of the black body is necessary to preserve peace and order in society, and (2) the status of whiteness confers upon white people the privilege, benefit, and legal entitlement to police, hunt, capture, brutalize, and kill black people for sport, and to discover crimes--alleged, imagined, and hoped for. The definition of crime includes crimes in law and crimes against white supremacy. Crimes against white supremacy occur when a black person refuses to submit to white supremacy and engages in conscious acts of antisubordination.

The Rule is a badge and incident of slavery because it is rooted in the ternary status of black people as wild animals, manui assueta, and homo criminalis. The intended consequence of the modern application of the Rule is to force black people to occupy death worlds. As defined by Achille Mbembe, death worlds are “new and unique forms of social existence in which vast populations are subjected to conditions of life conferring upon them the status of living dead.”

Furthermore, America's system of unspoken laws is a form of racialized structural violence because it upholds structures of oppression. The system exists because overt legalized racism is out of fashion. Racism “has had to renew itself, to adapt itself, to change its appearance. It has had to undergo the fate of the cultural whole that informed it.” The “vulgar” and “over-simple” racism of slave laws, slave patrol codes, black codes, and JimCrow laws have been coerced into refining itself to the point of plausible deniability. Hence, legalized racism has been forced underground. The laws that once existed as sadistic signposts of white supremacy have been re-codified as unspoken laws. Unspoken laws, such as the Rule, dictate how formal laws are constructed, interpreted, and applied to black people. The guise of colorblindness provides them with refuge.

Formal laws and unspoken laws operate concurrently to concretize states of exception where black people are stripped of their status as legal subjects due to their dehumanization and the presumption of criminality that is attached to black skin. In states of exception, black people are non-citizens. They are forced to navigate a “legal black hole” where they are divested of full legal protections and granted precarious legal rights. Within the legal black hole, black people are fair game to be policed, hunted, and captured at any time. The Rule has been repeatedly ratified by judicial decisions, jury verdicts, and failed indictments, ranging from fugitive slave cases to use of force cases.

Everyone knows and understands the Rule. Black people have relentlessly said the quiet part out loud. Black people have been relentlessly silenced because the quiet part exposes the fallacies of America's legal system. This article says the quiet part out loud by making three claims.

First, the Rule is one of America's most malignant unspoken laws. It is the consequence of laws and societal norms that rationalize the perpetual criminalization and propertization of black people. It proves that society views black people as threats and black bodies as objects to be possessed and exploited for their value in slave capitalism and carceral capitalism.

The Rule is insidious because it “has a generative power of its own” and has created a body of law “in its own image.” It “lies about like a loaded weapon ready for the hand” of any white supremacist who asserts the authority and “can bring forward a plausible claim of an urgent need” to deploy it. From its inception, the Rule was structured to encompass the varied legal classifications of black people living in a “slavocracy.” The Rule began as an openly racist informal rule utilized by white citizens to control the hereditary risks of slavery. Then, it was legally codified in various State laws and explicated in treatises.

After abolition, the Rule was forced “to undergo the fate of the cultural whole that informed it.” It had to adapt to the legal reality of the Thirteenth Amendment and the cultural reality of free black bodies. However, because society held onto the myth of the depraved black criminal, the Rule was not entirely forced underground. It renewed itself in black codes that retained the legal structures of slave laws and contained enforcement mechanisms akin to slave patrol provisions. Then, in response to the Fourteenth Amendment and the Civil Rights Acts of 1866 and 1875, society made it clear that race-neutral laws were inconsequential. Laws, such as vagrancy and citizen's arrest laws, were almost exclusively enforced against black people, leading to a wave of carceral enslavement and convict leasing. laws and the Supreme Court's decision in The Civil Rights Cases solidified the point. The Rule manifested itself in lynchings, arrests, and white supremacist-vigilantism. Thus, despite the form of the law, society openly enforced the Rule as a legitimate means of preserving white supremacy and ensuring carceral capitalism supplanted slave capitalism. The right to possess, control, and exploit the black body as a de facto form of racialized property persisted.

When the Court definitively struck down JimCrow laws, again, the Rule was forced “to renew itself, adapt itself and change its appearance.” It was forced into America's subterranean body of law, thereby completing the bifurcation of our legal system. The full transparency of legalized racism was replaced by a tacit reliance on society to utilize a de facto system of unspoken, white supremacist laws.

Accordingly, this article claims that racialized policing was developed as an instrumentality of governance to enforce the Rule. The two are inextricably linked because racialized policing and the Rule are based on the relationship of enmity between black people and society, in which society has designated black people as the “terrifying object.” As used in this article, the term policing encompasses the actions of police officers and private citizens because both have been deputized by law and society to eliminate the threat posed by blackness. The term racialized policing means “not only the literal use of police force to control the behavior of Black people--by arrest, incarceration, murder and so forth--[but also means] the control, regulation, and surveilling of Black bodies: how Black people are allowed to “be,” where Black people are allowed to go and when, and what choices Black people are allowed to make.” As used in this article, a white supremacist can be of any ethnicity or race. A person who has internalized the ideologies of white supremacy, resulting in an inferiority complex that makes him or her want to police black people in order to obtain proximity to whiteness, is a white supremacist. Moreover, a white supremacist is a person that consciously or unconsciously believes in the tenets of white supremacy.

Finally, this article claims that Travis McMichael, Gregory McMichael, and William “Roddie” Bryan lynched Ahmaud Arbery pursuant to the Rule. In body-camera videos and statements made after the killing, each rationalized their actions by implicitly stating and applying each part of the Rule. Their dispositions proved they hunted him for sport and because they presumed that he was a criminal, despite contrary evidence. Gregory was giddy: “If he'd have gotten that shotgun, I was going to cap his ass.” Roddie was not initially involved. But upon seeing white men in a truck hunting a black man, he yelled, “ya'll got him,” before he hopped into his truck to join the hunt and pulled out his cell phone to memorialize it. Travis declared that Ahmaud left him no choice. All Ahmaud had to do was stop and talk to him.

Ahmaud's murderers were not instantly arrested and charged because the criminal justice system in Glynn County, Georgia, understood and applied the Rule. Only after the lynching was publicized did the Attorney General cite Georgia's former Citizen's Arrest Law as a defense. As Ahmaud lay dead in the street, Gregory asked, “y'all aren't going to put him [Travis] in cuffs?” An officer responded, “[w]hy would he be in cuffs?” An officer told Roddie to “go home and get you a lil' glass of tea.” The officers eagerly provided Travis and Gregory with wipes to clean off Ahmaud's blood. One officer instructed another to make sure he did not give them the wipes that burned.

Part I of this article contains a historical analysis of how white supremacists defined blackness. The definition is significant because it informed why and how the Rule was constructed. In Part II, the Rule is fully explicated. Part III analyzes the body of law that the Rule has generated, starting with slave laws and ending with the Supreme Court's excessive force jurisprudence. Part IV examines the Rule through the lens of the Arbery Case.

[. . .]

The Rule of Black Capture can no longer be dismissed as a figment of the black imagination. Videos, which are available on demand and can be viewed in the palms of our hands, prove that the Rule is the “normative basis of the right” to beat and kill black people. The act of hunting and capturing a human being is a spectacular display of necropower that puts the world on notice as to who has the “right to kill, allow to live, or expose to death.” It defines who is subject to capture and the permissible means of capture. Due to the scant number of convictions, the world has been put on notice that in America, white supremacists have the right to capture black people; any black person is subject to capture; and brutality and murder are permissible means of capturing black people. Therefore, white supremacists have the right to kill black people, allow black people to live, and expose black people to death.

Associate Professor of Law, Albany Law School.