Sunday, June 16, 2019

Abstract

Excerpted From: Shawn E. Fields, Weaponized Racial Fear, 93 Tulane Law Review 931 (April 2019) (Full Document) (428 Footnotes)

 

shawn fieldsFear and ignorance lie at the heart of prejudice. Irrational fear, particularly of people of color, has shaped the American criminal justice system since the nation's colonial beginnings. For nearly 350 years, from the arrival of the first slave ships to Virginia in 1619 to the passage of the Fair Housing Act in 1968, de jure segregation in America created a caste system based on race. Many of the propagators of this apartheid trafficked in racist fear-mongering to justify discriminatory treatment of African Americans, warning white America about the inherent criminality and violent propensities of black men.

This myth of the "black bogeyman" has endured for centuries and taken many forms--from the "rebellious Negro," to the "[b]lack brute" rapist, to the "super-predator." These racist tropes of a black criminal subclass are now so ingrained in the fabric of American society that science long ago confirmed the existence of a pervasive, unconscious, and largely automatic bias against dark-skinned individuals as more hostile, criminal, and prone to violence. These biases infect nearly everyone.

Scholars have written passionately and convincingly about the ways in which these long-held explicit and implicit racial biases corrupt official actors within the criminal justice system--the legislators, police officers, prosecutors, public defenders, judges, and juries. This Article explores the impact of racial fear on a critical but little-examined "unofficial" actor in the criminal justice system: the civilian complainant. In particular, it considers how bias-motivated civilians weaponize law enforcement to respond to their irrational racial fears through misuse and abuse of 911 and other emergency response systems.

In doing so, this Article contributes to the existing literature by examining (1) why this particular form of "weaponized racial fear" is occurring with increasing frequency, (2) what impacts police response to frivolous complaints have on the individuals and communities most targeted, (3) how legislatures and courts acquiesce to such behavior, and (4) how modest changes to existing law and police department policies can limit the impact of this weaponization.

This discussion is overdue for several reasons. First, local 911 call centers across the country receive an overwhelming number of frivolous or accidental "nonemergency" 911 calls. Yet, most police departments require officers to respond to all but the most patently unnecessary calls. Second, in a pluralistic, integrated society where African Americans occupy physical, professional, and hierarchical spaces once legally or traditionally reserved for Caucasians, fearful white Americans increasingly interpret innocent conduct by black Americans in "their space" as suspicious behavior requiring a response from an armed officer. Third, acting on these racial fears results in far more than frivolous phone calls and a waste of taxpayer money. As the killings of Michael Brown, Stephon Clark, and dozens of other unarmed black men and boys at the hands of police officers has made clear, what may begin as a vague complaint about a "suspicious black male" too often ends in unnecessary violent confrontation. The consequences of weaponized racial fear are simply too great to ignore.

At its core, this Article challenges the popular notion that improving the quality of police interactions with people of color can sufficiently lessen this epidemic of racial fear. While community policing efforts and implicit bias awareness training are laudable, they represent a drop of water in the ocean of explicit and unconscious racial bias permeating all aspects of society. Instead, recognizing the sheer number of unnecessary police contacts initiated by frivolous 911 calls and the role pervasive racial fear plays in many of these civilian complaints, this Article advocates for a reduction in the quantity of police contacts with people of color by suggesting legislative reforms designed to inject much-needed discretion into the emergency response system and to provide enforceable deterrence mechanisms against racially motivated calls.

This Article proceeds in five parts. Part II traces the history of racial fear in America, highlighting racist fear-mongering efforts to instill a permanent suspicion of the "unidentified black male." In this Part, I discuss what I call the emerging "fourth wave of American racial fear," defined by fear of African Americans coexisting in public "white spaces." The first three waves of racial fear--tracking roughly the eras of slavery, Jim Crow, and early mass incarceration--were each defined by the formal legal expression of fear through de jure or de facto discriminatory criminal treatment. In contrast, the fourth wave of racial fear reflects a growing uneasiness by white Americans of black Americans thriving outside of their "iconic ghettos" and in all sectors of society. Fearful of this change and lacking a formal segregationist mechanism to validate their fear, these individuals consciously or unconsciously see criminal suspicion in innocent conduct and call upon the state to restore the status quo.

Part III examines the fact that many of these fears reflect deeply ingrained, implicit racial biases held by both civilians and police. Rather than merely repeat the important scholarship on the science of implicit bias, this Part highlights the growing evidence that implicit bias awareness and retraining programs do little to improve either individual or institutional biases. It also articulates an often-overlooked limitation on bias retraining efforts in the criminal justice system. These efforts only focus on institutional bias from official actors such as police officers, judges, and prosecutors but do not and cannot systematically retrain the biased brains of civilians who irrationally feel threatened in their daily lives. Retraining programs also cannot penetrate the phenomenon of confirmation bias, wherein apprehensive people of color, anticipating discrimination, may respond unconsciously to interracial or police interactions uncooperatively or with hostility. This Part thus serves to illustrate the permanence and pervasiveness of racial fear across all societal strata.

The history, violence, permanence, and unconscious pervasiveness of racial fear within the criminal justice system confirms that all encounters with law enforcement are fraught with racial iniquity, despite the best intentions of individual officers or precincts. This phenomenon should urge lawmakers and police departments to minimize unnecessary adversarial contact with communities of color, at least the contacts initiated by a threadbare civilian accusation of criminality. But that has not been the case.

Part IV demonstrates that civilians possess broad license to weaponize racial fear by summoning police officers to respond to any and every bias-motivated 911 call, regardless of how frivolous or patently racist. This Part begins by highlighting the crippling epidemic of misuse of emergency response systems in general and the inefficient requirement in most departments that dispatchers send officers to all but the most egregious "nonemergency" calls. It then focuses on racially biased calls, providing a thirty-day snapshot of weaponized racial fear in action. The Part concludes with an exploration of the devastating impacts of police response to bias-motivated calls, including the erosion of trust between police and vulnerable communities, and the psychological, legal, and physical effects of these encounters to the wrongfully accused individuals.

Part V turns to the "weapon" in the weaponization of racial fear: the armed police officer. In particular, this Part examines how the state acquiesces to being weaponized by civilian racial fear. While most police officers are required to respond to every frivolous criminal complaint, they remain largely immune from any sanction if they respond to a clearly frivolous encounter with unnecessary or even lethal force. Requiring armed officers to respond to all racially motivated calls but allowing them to act with impunity in their responses creates a dangerous "weapon" for use by prejudiced civilians.

This Part also explores the role of courts in fostering this epidemic. Lower courts throughout the country, following the intimations of the United States Supreme Court, have lowered the Graham v. Connor "objective reasonableness" standard for use of force cases to such a degree that all but the most patently egregious violent conduct will be protected. And even if a judge or jury finds the officer acted unreasonably, the doctrine of qualified immunity has "metastasized into an almost absolute defense" for police officers. Judges and juries also routinely give officer testimony greater weight than civilian testimony in misconduct cases, despite widespread evidence of "testilying" by officers to manufacture details in hindsight making their conduct appear more reasonable.

Part VI offers recommendations, including model legislation to address and deter racially motivated 911 calls. In doing so, this Part borrows from the uneven experience of legislatures attempting to deter frivolous lawsuits known as strategic lawsuits against public participation (SLAPP). These suits abuse and weaponize the court system by allowing plaintiffs to bring frivolous claims for the sole purpose of intimidating defendants and silencing their public criticism of plaintiffs. A majority of states have passed "anti-SLAPP" legislation, but these laws have drawn sharp criticism for restricting the fundamental right to access to the courts.

The "anti-SLAPP" experience provides an instructive parallel to the weaponized racial bias context. Bias-motivated individuals abuse and weaponize law enforcement resources by making frivolous complaints for the purpose of intimidating an innocent person of color or having him arrested. But much like current anti-SLAPP legislation, calls by some legislators and activists to criminally punish all nonemergency 911 calls or make all bias-motivated calls a hate crime would almost certainly deter people from accessing critical lifesaving services for true emergencies. With these competing considerations in mind, the Part provides a model statute giving greater discretion to dispatchers and police officers to ignore frivolous calls on the front end, providing for stiffer penalties for all such clearly frivolous calls, and providing greater access to civil remedies for wrongfully targeted individuals on the back end. The Part concludes with a discussion of anticipated criticisms of this approach.

[. . .]

When white civilians weaponize their racial fears,

[W]hat's really happening is that these [individuals] are looking into a mirror and seeing a ghost.

That ghost is our terrible history of slavery and segregation. It tells them that something is not right. At the deepest level, the callers and their enablers seem to feel black people do not belong, that [they] should not be allowed to be as free as whites.

The ubiquity and permanence of racial fear is necessarily joined by the ubiquitous and permanent knowledge that people of color are viewed by police and society in general as more suspicious and threatening than white individuals. Nearly a century ago, W.E.B. DuBois stated what was common knowledge then, that "[n]othing in the world is easier in the United States than to accuse a black man of crime."

If we are to acknowledge--as we should--the reality and permanency of racial fear, we should also impose on all civilians the assumption of knowledge of this basic fact. In doing so, we necessarily and quite fairly should require white Americans to consider the consequences of summoning armed agents of the state to investigate black Americans, to think twice before making the phone call, and to assume the consequences of liability for weaponizing racial fear for frivolous reasons. 


Assistant Professor of Law, Campbell University School of Law.

 

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