Become a Patron! 



Excerpted From: Donald F. Tibbs, Of Law and Blacklives, 50 Years Later: Race and Policing in the Aftermath of the Moynihan Report, 8 Georgetown Journal of Law & Modern Critical Race Perspectives 85 (Spring, 2016) (82 Footnotes) (Full Document)


DonaldFTibbsThe title of the Journal's Symposium, “The 50 Anniversary of the Moynihan Report,” situates our gathering in the shadow of the recent policing deaths of a long list of unarmed black men. The convergence of racial progress and multicultural democracy that should otherwise mark this historical moment, is undermined not as much by the deaths themselves, but by the failure of our legal system to hold the police, as criminal perpetrators, accountable. This, in my humble opinion, makes the fiftieth anniversary of the Moynihan Report far from an uncomplicated celebratory milieu.

Rather than being able to celebrate the destabilization of the basic structures of anti-black racism, namely the cycle of poverty, under-education, and the disintegration of the black family, by recognizing that the problem was rooted in the institution of slavery, as Moynihan explained, we are facing a far greater crisis of black people continuing to be the problem in the twenty-first century. Instead of racial progress and equality, we are still confronting the ongoing trauma of militarized policing in black communities. Instead of racial uplift, we are witnessing the over-reliance on SWAT teams to execute search warrants for non-violent suspects. Instead of celebrating a revitalization of the black nuclear family, we are socially, legally, and emotionally exhausted by the ongoing problem of the over-incarceration of black men. And instead of celebrating the black fathers that are present in their children's lives, we are protesting against the police using an outlawed chokehold that leaves one black child fatherless. Reckoning these racial stalemates within the shadow of the Moynihan's report leaves me with a feeling of being smothered by American racism. And much like Mr. Eric Garner, I, too, CAN'T BREATHE.

Taking stock in these historical moments means seeing how the fiftieth anniversary of the Moynihan Report ironically occurs at the same time that policing continues to rely upon the racist tropes of suspicious, dangerous, or violent black men in criminal justice policy and practice. Despite Congress outlawing racial inequality more than fifty years ago in 1964, black men are still going to their graves while their murderers go home to their families. The cases of Trayvon Martin, Oscar Grant, and Tamir Rice epitomize anti-blackness in spite of the law, or white privilege because of it. These moments of black innocence epitomize American culture by blaming black people for their own deaths (i.e., wearing a hoodie or playing with a toy gun). These examples strengthen a disciplinary narrative present in structural racism: that black men's failure to submit to police authority is the real cause of their death.

In this essay, I will discuss how we can reframe the state of dis-union between the failed progress of black people and the belief that our government and its offspring (the criminal justice system) should be of the people, for the people, and by the people. In particular, I argue, through a reading of the nexus between two major claims regarding black inequality in the Moynihan report, how we can uncover the recent police murders of unarmed black men as more mundane than phenomenal. Simply, these deaths represent the continued victimization of black people through a process of racially biased policing based on implicit biases that stereotype black men as criminals.

Deconstructing racial bias in the murders of unarmed black men, particularly in the aftermath of failed federal investigations, is a complicated task for several reasons. First, it requires moving beyond the belief that police officers tell the truth, the whole truth, and nothing but the truth when an alleged unlawful use of force occurs. Unfortunately, there is countless qualitative data and research to suggest and prove that the police engage in cover-ups and other criminal acts, such as perjury under oath, that obstruct justice when faced with the real possibility of legal accountability. This practice, known as “testilying,” is not only long-standing, but also pervasive when the victims are innocent black people, or other people of color.

Second, we must accept that the forensic evidence that often headlines the government's investigation cannot and does not tell the entire story of what happened in any criminal case; it only reconstructs objective facts, while subjective intentions get ignored. For example, forensic evidence cannot determine motive, it cannot determine intent, and it does not speak to every moment of an interaction between individuals. Thus, while forensic evidence can be said to provide us with the footprint of a homicide, it certainly does not expose the homicide's DNA- by which I am referring to the totality of the circumstances that explain why, as opposed to how, the homicide of an unarmed black man occurred in the first place.

Finally, we must disavow ourselves of the “hero cop” narrative that is so firmly rooted in our socio-legal psyche. It is true that many police officers engage in difficult tasks every day, but whether they should be categorized as heroes is seriously being called into question. According to David Feige, policing, as either an institution or a job, is not that heroic at all; in fact, it does not even “crack the top-10 list of most dangerous jobs.” Rather, policing has been intricately woven into our social discourse through a very carefully constructed narrative performed by the police union. More dangerously, Feige states, “the hero cop is also used to legitimize brutality as necessary, justify policies that favor the police, and punish anyone who dares to question police tactics or oppose the union's agenda.” As we have learned from Critical Race Theory, the ideology that there are immutable traits or that there are essential characteristics associated with a group of people distracts us from our ability to admit and accept that police officers are humans who make value-based judgments utilizing the same implicit bias and social norms as everyone else.

Only after we accept these three truths can we then honestly assess the state of the dis-union between the black community and the police fifty years after Moynihan's 1965 report. Rather than follow the popular notion that the election of America's first black president is indicia of our racial progress, we should instead closely examine Moynihan's concerns over black inequality as applied to the post-Obama era, particularly focusing on unconstitutional policing.

In his report, Moynihan pronounced that the legislative gains of the civil rights era, namely the Civil Rights of 1964 and the Voting Rights Act of 1965, end-capped the Civil Rights Movement. According to Moynihan, “[t]he demand of Negro Americans for full recognition of their civil rights was finally met.” Left undisturbed, however, was the future of social and structural reforms that addressed the deep inequalities that were not only a legacy of past racism, but also entrenched in all major institutions of American society. When Moynihan released his report in July 1965, he addressed what he believed would stifle progress for the Negro Family, viz., “the racist virus” in the American blood stream and the “unimaginable treatment” of black people at the hands of the American government.

The remainder of this article deconstructs the racial-historical underpinnings upon which that virus and unimaginable treatment still depend: the legal construction of black criminality. It is through this construction that black people are seen as the other, as violent predators whose non-violent acts of wearing a hoodie, failing to walk on the sidewalk, or allegedly selling cigarettes without a license is somehow deserving of the death penalty. Understanding these historical phenomena provides the lens through which to critically approach a deeper understanding of Moynihan's concerns for “the Negro Family,” particularly in the aftermath of significant civil rights gains of the 1960s. This article addresses Moynihan's point that the unimaginable treatment of black people spurred by the racist virus of anti-blackness not only takes its toll on black people but also has given rise to the resurgence of the protest politics of our present era. Simply, it argues that given the current state of affairs for black Americans, it is questionable whether the celebration of the 50 Anniversary of the Moynihan Report is indeed a celebration at all.

[. . .]

Quoting President Lyndon B. Johnson's January 4, 1965, State of the Union address, Moynihan noted in the opening of his famous report, “Two hundred years ago, in 1765, nine assembled colonies first joined together to demand freedom from arbitrary power.” Moynihan was referring to the colonists' rejection of the arbitrary policing power of the British crown. Despite our country's best efforts, the issue of arbitrary police power against American citizens remains today, albeit in a slightly different context. Unlike in 1765 when blacks had no constitutional rights as members of slave society, today that arbitrary power is exercised against free black people in a manner that is not only unconstitutional but also built upon the “racist virus” that leads to the “unimaginable treatment” from which the legal vestiges of slavery continue today. This concerned Moynihan when he wrote his report in 1965 and should concern all Americans today.

As we revisit the report fifty years later, we should be proud that America has indeed progressed, but be mindful of the ways it has not. In the same moment that we hold our collective heads high with the pride of electing America's first black president, we must not forget the many black people continue to die at the hands of racial bias in policing. As a result, our celebration of Moynihan's report fifty years later is a landmark moment--for better and for worse. 

Associate Professor of Law, Thomas R. Kline School of Law, Drexel University College of Law. B.A., Georgia State University, J.D., University of Pittsburgh, Ph.D., Arizona State University, LL.M., University of Wisconsin Law School.