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Lenese C. Herbert

Excerpted from: Lenese C. Herbert, O.P.P.: How "Occupy's" Race-based Privilege May Improve Fourth Amendment Jurisprudence for All, 35 Seattle University Law Review 727 (Spring, 2012) (140 Footnotes omitted)


What strikes me here is that you are an American talking about American society, and I am an American talking about American society--both of us very concerned with it--and yet your version of American society is really very difficult for me to recognize. My experience in it has simply not been yours.

Occupy is an organic, diverse, grassroots, and anarchist protest of national scope. It arose from a groundswell of fomenting fury against "the One Percent," i.e., the ownership class that is broadening the gap between itself and the nonelite remainder classes of America. Occupy regards itself as a self-governing, consensus-based, direct-action collective of collectives that spans the United States. Occupy has no official set of demands, projected outcomes, bottom lines, talking heads, or internal hierarchy. Rather, Occupy is about the "failure" of the United States to ensure the protesters' financial and professional success. It has "ignit[ed] a much-overdue conversation" about America's broken social contract and the government's bailout of "the wrong folks" on the backs of its working- and middle-class who "got nothing back." Occupy is all the rage in certain circles, strangely popular in others, and has even been called "sexy" and "hip." Almost immediately, I supported Occupy.

With a startling quickness, however, my Occupy enthusiasm waned. It then began to vacillate between indifference and bare tolerance. My empathy curdled, it seemed, much sooner than expected.


I am of the vintage and ilk that reveres the successes of those who participated in the American Civil Rights Movement--those preternaturally dapper and impossibly stylish gentlefolk who protested while coiffed and coated, sporting sharp trouser creases, meringue-puffy crinolines, skinny ties, and nicely polished saddle shoes. These Americans were generally quite ordinary. A few were privileged; many were quite poor. They were treated as second-class citizens and denied their birthright in their own country. As a result, they knew they would suffer criminal arrest for peacefully protesting unlawful state violations and for violating state segregation laws that contradicted human dignity and America's zeitgeist. These protesters steeled themselves against terrible mob violence and death, given the ferocity with which some whites believed that "the concept of whiteness was premised on white supremacy rather than mere To my eyes--and no doubt, others--these citizens are iconic personifications of American courage and reform.

Thus far, Occupy has stirred none of these (admittedly) romanticized notions or even swells of authentic pride for me (save for the times U.S. military members and veterans have stepped in to protect Occupy members from police Occupy protesters are, comparatively speaking, blessed with a stunning array of privileges, the least of which is state-of-the-art technology. Occupy members communicate not only with each other but also with the world via the latest mobile devices and social-media platforms. Additionally, Occupy has been the beneficiary of sympathetic merchants who, at various "encampments," deliver sustenance ranging from pizza to gourmet food according to the protesters' dietary specifications (e.g., Occupy members have requested and received donated tents, generators, clothing, and all matter of outdoor gear and camping equipment to make their stay at various public locations more comfortable.

Occupy critics abound. Some have commented on Occupy's aesthetic as sprawling, disorganized, and unkempt. Some distrust or dismiss Occupy due to its lack of organizational structure or clear objectives. So, when a seemingly coordinated law enforcement effort was undertaken across the nation to "move" Occupy "encampments" from commandeered public spaces, it was startling to encounter shrill missives of disbelief, emotional entreaties, and shock. Why, in twenty-first century America, is anyone surprised that police use violence to disperse peaceful, nonviolent protesters? It was my turn to be shocked, though I found the response of Occupy and its supporters understandably native (given my perception of the age range and life experiences of Occupy's members).

I was not alone. Occupy's frantic social media communications that "they are arresting people" or "they are beating people" or "they are tightly handcuffing and roughly handling people" irked many. Had Occupy members not paid attention to American history? When Occupy members complained that law enforcement officers harmed media that recorded officer violence against Occupy members, I wondered why these occupiers did not expect that police would monitor their communications, attack those recording less-than-honorable officer conduct, and destroy the evidence. Squelching civil unrest with official violence is a textbook tactic of American law enforcement agencies. All of these patterns (and more) were evidenced by the American Civil Rights Movement.

Yet, Occupy supporters seemed incapable of seeing the parallels and shared identity. Apparently, a significant number of Occupy members felt no kinship or identity with those wives, poets, scholars, academicians, students, men, women, and children of that "theatre of cruelty," the American Civil Rights Movement. The disconnect was puzzling. If the Revolutionary War created and the Civil War preserved the United States, the American Civil Rights Movement beatified (not fully, but sufficiently) its ideals and constitutional guarantees. Certainly, there are Occupy members who are students of the American Civil Rights Movement and emotionally connected to its tectonic movement of the United States, the aftershocks of which continue to reverberate continents away. Even for those occupiers who did not immediately think of the American Civil Rights Movement, at a minimum, did they not recognize modern policing's callous disregard and brute demoralization that was experienced disproportionately by nonwhite "symbolic assailants," irrespective of criminality?

"Weird." Or maybe not.

Alas, it has become clear that Occupy members are poor students of history. Of course, these Occupiers did not actually feel kinship with the protesters of the American Civil Rights Movement--they could not. They may be far removed from the centuries-long institution of chattel slavery and post-Civil War American apartheid, but they--in whiteness-are still its inheritors. And perhaps like the whites who felt disenfranchised by the societal shift after the success of the Freedom Rides of 1961 and felt betrayed by their federal government, Occupy whites have learned that their privilege is not inalienable, but legal. Arguably, this is still not too shabby a result. Yet, if the law giveth, it can taketh away. If "[t]he common core of inalienability is the negation of the possibility of separation of an entitlement, right, or attribute from its and if one has known only a world structured on racial subordination of nonwhites, the property interest in white privilege becomes an expectation.

In other words? What Occupy and perhaps the rest of us are learning is that law has "constructed 'whiteness' as an objective fact, although in reality it is an ideological proposition imposed through Occupy has (temporarily) lost its whiteness, which provides "access to a whole set of public and private privileges that materially and permanently guaranteed basic subsistence needs and, therefore, Losing that which has defined your personhood and upon which your personhood relies, then, must be quite the cosmic shift.

Occupy, you have a race problem.

But Occupy's race problem may ultimately prove to be a boon to those who decry the overly aggressive, abusive tactics employed by militarized police departments on nonwhites. This Article submits that Occupy's race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a "systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in an era in which courts are free(er) to produce a more legitimate jurisprudence regarding police conduct that inspires greater confidence in reality-based adjudications of modern (albeit longstanding) police misconduct, irrespective of race, as the current "[s]ystems of privilege maintain hierarchies of inequality, adversely impacting the possibility of full societal