Law and Order Are Why This Time is Different
Watching the protests and police riots, I was thinking about Howard Zinn recently, author of A People’s History of the United States. I was thinking, specifically, of his autobiography, You Can’t Be Neutral on a Moving Train. He’s famous for A People’s History, but Zinn, who died in 2010, was beloved as a teacher, activist, agitator, ally, and leader. He was not only a historian; he was a participant in history, a man who lived the tumult of the mid-twentieth century and was seemingly everywhere in every cause — civil rights, antiwar, labor, women’s liberation, the environment. He was arrested (and maced and beaten) more than a few times, and the FBI placed him on a list of people to be summarily detained in a national emergency. Looking at his writings today, there is something of the prophet in them, from his call, essentially, to defund the police, to his understanding of what role the police play in society.
An eager anti-fascist before the war, when the original America First crowd was ascendant in Republican politics, a curious Zinn went to a political rally in Times Square. The rally was peaceful, and still the NYPD charged into the rally mounted on horses, and a policeman knocked the 17-year-old Zinn unconscious. Zinn would later say in his autobiography that he went to the rally a liberal and came to in the gutter of Times Square as a radical, the police meeting a peaceful rally with violence having taught him:
“The state and its police were not neutral referees in a society of contending interests. They were on the side of the rich and powerful. Free speech? Try it and the police will be there with their horses, their clubs, their guns, to stop you.
From that moment on, I was no longer a liberal, a believer in the self-correcting character of American democracy. I was a radical, believing that something fundamental was wrong in this country — not just the existence of poverty amidst great wealth, not just the horrible treatment of black people, but something rotten at the root. The situation required not just a new president or new laws, but an uprooting of the old order, the introduction of a new kind of society — cooperative, peaceful, egalitarian.”
We’ve seen the same sequence — police shooting, protests, backlash — played out again and again, and yet this time is different. The backlash against the protests, though it has fellow travelers in high places, is not drowning out the protests. For the majority of Americans, the lesson Zinn drew finally seems to have struck home eighty years later.
The violent reactions of so many police to suppress and curtail lawful protests, in which individual police have broken statutory laws and entire police departments have violated constitutional law, have made millions of Americans wake up to the nature of policing in America, embrace the need for reform, and led many to move past calls for reform to calls for defunding and even disbanding police departments. Just as some anonymous cop’s decision to strike Zinn with his baton turned him from a liberal to a radical, the latest police response to the latest police killing of an unarmed African-American has turned some moderates into liberals, at least on this issue, and some liberals into radicals, though “defund police” isn’t nearly so drastic as it sounds.
This sea change in Americans’ attitudes toward police and racial justice seems inexplicable; American public opinion does not, as a rule, swing so quickly or widely as it has this Spring. The public’s response feels different, if only because we’ve seen this chain of events played out so many times over the last decade without the response to injustice spreading to all 50 states, being supported by a broadly diverse coalition, and resulting in small but positive policy changes.
But if the change seems sudden, it wasn’t. Consider it the moral equivalent of bankruptcy: gradual, and then all of a sudden. The reaction of Americans to the murders of George Floyd and Breonna Taylor have been pushed along by precedents and the coincidental timing of the COVID-19 pandemic — all the people who’ve died at the hands of police; the modern era of overly aggressive and overly militarized response to protests stretching back to the Seattle WTO protests; the latter day lynchings of Trayvon Martin and Ahmaud Arbery; the presence of a naked race baiter in the White House and the political party that has abandoned virtually every principle it once held to support him; and the impact of the COVID-19 pandemic, which laid bare every disparity and inequality this country has; the pitiful and failed attempts to turn social distancing into a culture war issue; and the bottled up the frustration and energy of Americans who have watched their government behave like that of a developing nation led by a paranoid authoritarian.
But above all it is the dissonance on display, so striking that the only way to not see it is to not want to see it. White protestors, egged on by the titular president and organized by people and organizations tied to conservative causes, committed some of the same acts as BLM protestors: defying local ordinances against gatherings, loitering on sidewalks, obstructing roads. Many of them were armed and deliberately intimidated elected officials, trying and sometimes succeeding in obstructing them in the course of their duties.
It wouldn’t be fair or honest to say police did nothing during the lockdown protests. They did arrest some people; some did don their riot gear. But they didn’t disperse the (meager) crowds with tear gas; they didn’t fire rubber bullets; they didn’t mace anyone, let alone people who were in handcuffs and not resisting arrest; they didn’t assault the reporters covering the protests. They didn’t declare the protests illegal; order people to disperse; block people from leaving the area, known as kettling; and then assault and arrest every person trapped by the ranks of shield-bearing police.
But it’s not just the hypocrisy. It’s the dissonance of police, the people who are supposed to quell violence, instigating violence.
It’s the dissonance between what some mayors and police chiefs are saying and what their departments and officers are actually doing.
It’s the dissonance of the head of the Justice Department, the agency responsible for prosecuting people who violate the civil rights of others, ordering police and national guardsmen to assault protestors lawfully exercising their first amendment rights.
It’s the dissonance of armed soldiers surrounding the Lincoln Memorial.
It’s the dissonance of the demand for law and order coming from the mouth of a man who has no respect for the law and has done everything he can to undermine our constitutional order, doing so to invoke yet more law breaking.
It’s the naked dissonance between the law — which says George Floyd had the right to live and Americans have the right to peaceably assemble — and the social order — which made a police officer think he could kneel on the neck of man until he was dead while being filmed by onlookers and with his fellow police standing by and made hundreds of officers assault protestors while being filmed by journalists and with the gleeful encouragement of the titular president of the United States.
Law and order is always used as a singular phrase. It loses some punch that way, becoming a mantra instead of two words with independent meanings.
Law: the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.
The law is written. In America, the law is enacted through a democratic process, and you can argue the rightness and fairness of that process, but there is a process and ways of participating in it and of knowing what and who are responsible for the outcomes. We might take issue with some laws, but there are many so obviously right there’s no need to list examples.
But the police do not exist solely to enforce the law. If they did, they would not meet legal protests with illegal violence. They would not attack the lawful through an abuse of the law: curfews, loitering, standing in a roadway, blocking a sidewalk, failure to disperse. Or perhaps the most egregious statute police can use to violate someone’s civil rights, failure to comply with the violation of their civil rights.
Taking a picture of a police officer — or merely speaking to them — has led to assaults and arrests. People on their own front porch — watching a desert tan Humvee roll down the street followed by dozens of police kitted out in armor — were shot at with impact rounds. Being a journalist was grounds to one police officer to fire the impact round that blinded a reporter and to dozens of others who deliberately targeted journalists.
These behaviors seem inexplicable, even irrational, from the perspective of the law and officers’ own interests. Officers have ignored laws, broken laws, selectively enforced laws, undermined the law and undermined themselves in the process. More people than ever are rightly asking why.
Why, when confronted with peaceful protestors, did police outfit themselves for battle? Why, when leaders and officers acknowledged the wrongness of Floyd’s death — calling it out as what it was, murder — did they respond as they did when people took to the streets to give voice to the very same sentiment many of them were voicing?
Why did police commanders at headquarters, before any rioting had occurred, send their officers out in riot gear armed with crowd control weapons? Why did police commanders on the ground order peaceful crowds to disperse and then unleash their officers?
Why did the officers do it? Well, they were following orders. Orders that were immoral and often unlawful, which officers are not obligated to follow. In fact, they’re obligated to disobey.
Why did some officers take the initiative — sometimes seemingly with glee — to assault peaceful protestors and journalists doing their jobs? Bad apples? Sure, some. Because they were protesting the police themselves? Definitely.
Because it’s part of what police departments do, the role they play in society? Because it’s what police forces have always done? Because it’s just understood that police are supposed to control protestors, violently if the protestors are too many or too effective? Because, like Zinn said, the state and its police are not neutral referees in a society of contending interests.
Because the police on the street, like their commanders and the civilian leaders they answer to, have been indoctrinated with the unspoken, unwritten order to, literally, enforce not just the law but the social order:
Order: the arrangement or disposition of people or things in relation to each other according to a particular sequence, pattern, or method.
If it seems like systemic racism is insufficient to explain the law enforcement response to these protests, it’s because it is. Racism is just one component of the social order. Sex, gender, and sexual orientation are parts of the order. Religion and the lack of it are part of the order. Class is part of the order. Wealth is part of the order.
Police are part of the order — they have authority to lawfully use coercion and force, civilians do not, and police fiercely defend that component of the order, backed by society. Imagine what would have happened if some civilian used force in defense of George Floyd’s life. Imagine if that person had been successful and that Floyd had lived: that civilian would be spending years of their life in prison, had they lived through Derek Chauvin’s response. How many would have taken to the streets for that civilian?
Beliefs are part of the order, as Zinn found out in Times Square — there’s an acceptable range of ideas, and outside of that few really care if the power of the state is brought to bear on the expression of ideas or the attempt to act on them through legal means: authoritarian tendencies can be debated and even voted into office without being seen to undermine the American way of life, but socialism is, to many, an existential threat. Disorganized, barely coherent antifa is a threat to our streets, but organized, cohesive racists and proto-fascists are entitled to have their first amendment rights not only respected by the police but facilitated by the police.
It transcends liberal and conservative. The police in liberal Portland, Oregon used force against counter-protestors during a planned protest by Patriot Prayer, a proto-fascist, racist, anti-Muslim organization. A court ruled the police were within the law to do so, and one can make good faith arguments the police were right to do so: the first amendment protects proto-fascist, racist, anti-Muslim organizations and the deplorables who belong to them.
But from COINTELPRO to today, police target, spy on, and infiltrate left-leaning organizations. The LAPD has admitted to spying on anti-Trump groups, for instance. In one of the most egregious instances in very recent history, police in the capital of liberal California worked with a neo-Nazi organization to charge 100 counterprotesters with 500 crimes related to a brawl the neo-Nazis may well have started and in which counterprotesters were stabbed. Stabbing victims were charged with crimes, while only five Nazis were charged, none of them for the stabbings. In charging the counterprotesters, the police listed affiliations with Chicano and indigenous rights organizations as evidence of their alleged crimes, and if that makes no sense to you, think of how frightening it is that it made sense to those police. The charges were thrown out.
In Berkeley, California, the center of so much of the 1960s counter-culture, police worked with a conservative activist who admitted to assaulting counterprotesters to bring charges against the counterprotesters.
Even at supposedly radical left universities, police find cover to act outside the bounds even of decency, let alone the law. In 2011, an officer deliberately maced a line of protesters seated on a sidewalk while other police kept onlookers away. The university chancellor was asked by faculty and students to resign, and only did so five years later and with a $400,000 payout approved by the head of the University of California system, Obama’s one-time secretary of the Department of Homeland Security. An investigation found no basis for the officer’s defense for his actions, but prosecutors did not press charges, the police union tried to keep the names of officers involved a secret, and so trying was being investigated for putting two peaceful protesters in the hospital that the California Division of Workers Compensation awarded the lieutenant who fired the pepper spray $38,000.
In the end, all of this can be reduced to an essential and very old dictum: the strong do what they will, and the weak suffer what they must. The social order, however a society decides to delineate who has more worth and power, is nothing more than an ordering of that power from strongest to weakest. This is what police as an institution exist to enforce. Sometimes the order and the power are enshrined in law, and sometimes not, but regardless, the strong do what they will — that is the purpose of power — enabled by police and the monopoly on the legitimate use of force the law gives them, and the weak suffer what they must.
Until they refuse. Until something so shocks or disgusts them that they no longer consent to their own oppression. Until enough allies become outraged on their behalf. Then, the tipping point is reached, and we arrive at where we are now, with no guarantees for change but with a sense of power and a potential to create change that did not exist just three weeks ago
We arrived at this point because of the work activists have been doing for decades, but the tipping point was the display of dissonance between the law and the social order, the dissonance between de jure and de facto racism.
The law is on the side of George Floyd and the protesters, but the order is on the side of anonymous cops who think they can break the law with impunity. And it’s tempting to add “until now” to that sentence, but we’re not there yet. Not even close.
The law was on the side of birdwatcher Christian Cooper, yet Amy Cooper believed she could use law enforcement to enforce the social order. She was sure he would be terrified of her falsely reporting he was threatening her life, and she had good reason to believe so. Like Chauvin, she broke the law while being filmed doing so! She knows how policing functions in America. She knows the order takes for granted that the white woman is credible and the black man is not and that the black man is a threat even as she herself was threatening his life.
If that is the purest distillation of the order in my own memory, so obvious as to be unmistakable for what it is, the subtlety of the order is becoming clear to many for the first time thanks to COVID-19. The worst paid, most dangerous jobs are disproportionately held by racial and ethnic minorities, women, and young people, which is so much a given that few noticed it and fewer questioned it, until those workers started getting sick, carrying the virus home, and spreading it to their communities, which have been disproportionately sickened and killed by COVID. Why are those jobs disproportionately held by comparatively disempowered groups? Why don’t they have access to the same opportunities and pathways to opportunities? Why are they less healthy? Why do they have more difficulty accessing healthcare or even just healthy food?
Society know the answers, even if many individuals do not. Society ignores them or doesn’t even ask these questions. They’re givens. It’s not even that it’s how our society works. It’s how our society just is.
That’s what so terrifies Trump and his ethno-nationalist supporters: not the absence of law and order but that these protests are the beginning of a one-day successful effort to align the order with the law, to make the social hierarchy live up to the equality the law says is every American’s due.
That dodge, that the law says every American is equal and therefore racism is a historical artifact, has been the stock response of more polished racists: the Civil Rights Act was passed over fifty years ago, what more could you want?
And the response in turn is simple: we know the law is on the side of equality. We want the social order to reflect the law.
And every time Trump calls for law and order, every time some police turn to violence to enforce law and order, it only underscores the argument of those who are doing the hard work of change.
Trump and out-of-control police have accomplished what a decade of protest against police violence and systemic racism could not before: make moderates see and understand what progressives and radicals have been trying to tell them, that the law is on the side of justice and that the prevailing social hierarchy and the people hired to enforce it too commonly are not. That’s why this time is different.
