Above the Law

Police and the Excessive Use of Force

Skolnick Fyfe

• Publisher: Free Press
• Year: 2010
• eBook ISBN: 9781439118641
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

The now-famous videotape of the beating of Rodney King precipitated a national outcry against police violence. Skolnick and Fyfe, two of the nation's top experts on law enforcement, use the incident to introduce a revealing historical analysis of such violence and the extent of its survival in law enforcement today.

PART ONE

Occasions

2

Vigilante Justice

In 1837, the young Abraham Lincoln delivered an address on “The Perpetuation of Our Political Institutions” and found that the chief threat came from “the increasing disregard for law which pervades the country—the growing disposition to substitute the wild and furious passions in lieu of the sober judgment of courts, and the worse than savage mobs for the executive ministers of justice.”

—Richard Maxwell Brown,
The American Vigilante Tradition, 1969

[T]he beating of arrested Negroes—frequently in the wagon on the way to jail or later when they are already safely locked up—often serves as vengeance for the fears and perils the policemen are subjected to while pursuing their duties in the Negro community.

—Gunnar Myrdal,
An American Dilemma, 1941

One of us was interviewed at length about the beating of Rodney King by a thoughtful magazine reporter. She was shocked by the incident and, like so many others who saw it, was searching for a vivid metaphor to capture its essence. The near deadly rape and assault of a Central Park jogger in Manhattan had come to her mind, an act described by the youngsters who had participated in it as a “wilding.” Was the beating of Rodney King another wilding? she asked. “No,” was the reply, “These were not kids out of control. This was a symbolic lynching and came perilously close to being the real thing.” That’s also what it felt like to Rodney King’s passenger, Pooh Allen, when the LAPD pulled them over: “Damn!” he said. “They gonna lynch us!”¹

While most of us have come to regard lynching as a baleful relic of a distant past, the sort of brutality we witnessed on the Rodney King videotape may not be so uncommon. Like lynching, such brutality is employed to control a population thought to be undesirable, undeserving, and underpunished by established law. Such beatings do not merely violate the law. They go beyond and above the law to achieve a fantasized social order. They are the most frequent, albeit usually most hidden, occasions for police brutality.

Although the term “lynching” may conjure up visions of mob violence, police often were implicated in Southern lynchings, frequently as participants, more often as approving observers. Arthur Raper, who studied lynchings in the 1930s, estimated that at least one-half of the lynchings were carried out with police officers participating, and in nine-tenths of the others the officers either condoned or winked at the mob action. As Gunnar Myrdal observed in his monumental and authoritative study of the Negro in pre-World War II American society, Southern police officers routinely beat black captives to relieve the fears and avenge the perils they experienced in black communities.²

Evidence from historical sources, observational studies of police—our own and others—and legal materials shows that contemporary police brutality is both historically and sociologically related to lynching and related vigilante activities. The parallel is evident in several respects: both rely on legal authority to exonerate their extralegal use of force; both respond to perceived threats and fears aroused by outgroups, especially—but not exclusively—racial minorities. Both regard the legal order as too slow, too ponderous, too indolent, too unaware, or too constrained to deal with “the problem,” however it may be defined. Most of all, police who conduct themselves as did those we saw beating Rodney King are, like lynchers, teaching a lesson of retribution outside the bounds of the penal code. In Los Angeles, this tradition came to mean that police were entitled to go to virtually any extreme in rendering curbside justice to people who, like Rodney King, were defined as deserving wrongdoers. The Los Angeles police were doubtless not conscious of it, but they were part of the American vigilante tradition.

THE VIGILANTE PAST

American society has a long and dishonorable tradition of private violence to achieve domination and social control, coupled with a history of racism and nativism.³ The historical record indicates an appalling and recurrent pattern of disorder and violence on the part of groups whose aim has been the preservation of an existing or remembered order of social arrangements, and in whose ideology the concept of “law and order” has played a major role.

No common term adequately describes the diverse groups who have fought to preserve their neighborhood, their community, or their country from forces considered alien or threatening. The Ku Klux Klan, the Minutemen, or related antiblack, anti-Hispanic, anti-Asian, anti-Semitic, or anti-Catholic groups have different origins, different goals, and different compositions, but they have one feature in common: they are willing to break the law to achieve what they see as a necessary and desirable social goal. Yet far from being “criminals,” in their own eyes they are brave and moral actors, willing to pursue the punitive activities that more timid and hesitant others are disinclined to undertake.

Every social order is at some level maintained by the threat of punishment. A criminal code is, at its base, nothing more than a system of evaluating misconduct and of imposing measured penalties. But somewhere deep in the American experience is the idea that the legal order and its system of punishment are inadequate to cope with the problem, whether defined as crime, as immigrants, or as minority groups.

Usually we think of private associations—such as the Ku Klux Klan—as the instrument for administering or threatening such sanctions. These nativist groups see the formal enforcement of law and administration of justice as weak, inadequate, or inefficient. Such deficiencies justify “taking the law into their own hands.” In practice, this means that ordinary law, the law of established authority, is rejected to achieve a self-defined conception of order and control of perceived dangers.

In the broader sweep of American history, the frontier produced the conditions that led to the rationale for the extralegal enforcement of the law. Indeed, organized law enforcement was often absent on the frontier. The deeply rooted American tradition of self-help seemed a practical response where settlement preceded the establishment of legal machinery of social control. There was an immediate problem of danger and insecurity in areas where the formal agencies of law had barely penetrated. To those sparsely settled areas, vigilante justice brought a crude yet necessary kind of policing. This was the context for the vigilantes of the Western frontier and the popular tribunals of the mining camps, as well as the South Carolina Regulators of colonial times. The goals of most of those early ventures at social control were simple. Since formal law enforcement institutions were absent or inadequate to accomplish the preservation of order, voluntary associations sprang up to fill the need. But however understandable the self-help tradition might have been in light of frontier conditions, it generated a series of questionable—even dangerous—premises and precedents. It meant that even where legal rules, procedures, and institutions were adequate, people could avoid these to achieve “law and order.”

The common phrase “law and order” is often used mistakenly, as a misleading cliché, with emphasis on the “order” part of the phrase, with slight regard for “law.” Under a regime of law, a developed legal system imposes restraints on the quest for order. By contrast, a self-help system bypasses such restraints and leans toward the extralegal enforcement of order. Historically, private violence, sometimes in conjunction with constituted authority and sometimes not, came to be used as an instrument for enforcing a system of social, political, economic, and—perhaps most significantly—cultural arrangements against the claims of those whose actions, and whose very existence, were seen as threatening.

American Indians were unquestionably the first “alien” group to feel the combined assault of private and officially sanctioned violence. Regarded as threatening and exterminable, the native population of what was to become the United States was subjected to massive and sustained violence by private groups and government soldiers. Regarding the Indian, whose lands were being appropriated by white settlers along the frontier, “Many Americans cherished a conviction that they were waging what came to be called a ’war of extermination,’ and they waged it with determination and hardly disguised enjoyment.”⁴

The San Francisco Vigilance Committee of 1851 and others like it were, on the whole, composed of leading citizens who tried to control the justice system and employed private armies to achieve their aims. They were uninterested in legislative change or reform of existing institutions. Instead, they concentrated on the capture and punishment of “undesirables” and “criminals” whom they believed the courts had allowed to escape justice. Like those contemporary police who administer street discipline, they inserted themselves and their punishments as a substitute for a judicial process they perceived as weak and inefficient. Those vigilance committees had counterparts in all states west of the Mississippi, but they were perhaps most pronounced in California. Rarely were blacks the focus of such committees, because the major black migration to California did not occur until World War II, when African-Americans were invited to migrate—indeed, were subsidized to do so—to work in the shipyards and defense industries that flourished during wartime.

During the nineteenth century, the rough justice of the California vigilance committees actually worked hardest against Mexicans and Chinese. The hatred of these nativist vigilante groups was fueled in the fiercely competitive environment of the gold-rush mining camps and was institutionalized in state law. In the context of official denial of Chinese rights, the preservation of “order” meant that outbreaks of criminal lawlessness might be overlooked or even encouraged by constituted authority. For instance, in Los Angeles, after a white person was killed during a tong war, mobs invaded the Chinese quarter, looting and “killing twenty-one persons—of whom fifteen, including women and children, were hanged on the spot from lamp-posts and awnings.”⁵ The pursuit of “law and order” in the West prompted—as it sometimes does today—a special effort against minority groups considered dangerous to constituted arrangements, moral values, and racial dominance. We get some flavor of contemporary “vigilance” by police in the following comments of the Christopher Commission:

Witnesses repeatedly told of LAPD officers verbally harassing minorities; detaining African-American and Latino men who fit certain generalized descriptions; employing the so-called “prone-out” tactic . . . in minority neighborhoods, even for routine traffic stops; and using excessive force, particularly in African- American and Latino communities. While the Commission does not purport to adjudicate the validity of these complaints, the intensity and frequency of them reveal a serious problem.⁶

Vigilante justice was not confined to the West, however. It happened in the North as well, usually in connection with race riots. In fact, the bloodiest and most vicious lynchings in American history occurred not in Los Angeles or Atlanta but in New York City as an aftermath of the draft riots of July 1863. The city’s Irish unskilled workers—Democrats all—did not want to fight a Republican President’s war to free Negro slaves. Even apart from the dangers they would face as soldiers—a risk wealthier whites could avoid with a $300 payment—the Irish feared labor competition from freed Negroes who, they believed, if slavery were abolished, would cross the Mason-Dixon line and underbid them for jobs. African-Americans were killed with unbelievable ferocity during the riots. So many were murdered that it was impossible to count the many black bodies that bloodied the streets of Manhattan Island. When caught by the rioters, blacks were “hung up to lampposts, or beaten, jumped on, kicked and struck with iron bars and heavy wooden clubs.” Homes were sacked and residents driven into the streets. Women and children, as well as men, felt the hands of the rioters. One of the city’s newspapers reported:

A perfect reign of terror exists in the quarters of this helpless people, and if the troubles which now agitate our city continue during the week it is believed that not a single negro will remain within the metropolitan limits.⁷

Those Negroes fled the city as best they could, escaping to Hoboken and Long Island and into the woods along the Harlem River. By the third day of the riots, one observer commented, “the Negroes have entirely disappeared from the docks. Many of them, it is said, have been killed and thrown into the river.”⁸

The post-Civil War South faced the enormous problem of absorbing a population of former slaves while maintaining the dominance of the white caste. The solution, such as it was, led to enormous distortions in theories of natural racial superiority and the implementation of often brutal retaliations to keep the subordinate caste in its appointed place. The historian Allen W. Trelease comments:

The physical and psychological necessities of keeping Negroes in subordination led to the wildest inconsistencies of attitude and expression. On the one hand, the black man was best fitted by nature and temperament for a life of servility and happiest in his carefree dependence on white protectors. On the other hand, he was only a degree removed from the wild beasts of the jungle, and the most constant surveillance was needed to keep him from bursting the bonds of discipline and turning upon his friends and protectors in a bloody insurrection.⁹

The Ku Klux Klan offered one part of the solution to the white Southerner’s problem. It arose in the aftermath of the Civil War, when emancipation, the Fourteenth Amendment, and the ravages of the war itself had disrupted the traditional caste order and had weakened, to some extent, the effectiveness of class subordination. Originally begun as an amusement for a half-dozen former Confederate soldiers faced with postwar boredom, the Klan soon escalated as a powerful extralegal organization to assuage white Southerner’s fears—“a state of mind bordering on hysteria”¹⁰—that followed the collapse of slavery. But unofficial violence was joined by legislation aimed at suspending the limited gains of the Southern blacks. The provisional legislatures established by President Andrew Johnson in 1865 adopted the notorious Black Codes, intended to establish systems of peonage or apprenticeship resembling slavery.¹¹

After the Black Codes were struck down, Klan activity escalated to drive the freedmen out of politics and to restore power and control to the dominant white leadership. The night-riding assaults on blacks, Northerners, and their Southern sympathizers were justified as “the necessary effort to prevent crime and uphold law and order.”¹² The Klan’s first Imperial Wizard, General Nathan B. Forrest, justified the existence of the Klan in these words:

Many Northern men were coming down there, forming Leagues all over the country. The Negroes were holding night meetings; were going about; were becoming very insolent; and the Southern people . . . were very much alarmed. . . . Ladies were ravished by some of these Negroes. . . . There was a great deal of insecurity.¹³

Lynching was the typical weapon of the Reconstruction Klan and subsequent white terrorists. Lynching was a horrendous business. The victim was publicly tortured, mutilated, and hanged for all to see and remember—Strange Fruit, the novelist Lillian Smith called the human symbol of caste domination. The Tuskegee Institute has kept a record of lynchings in the United States since 1882. The record offers a shocking reminder that the white militant has been perhaps the single most violent force—outside of war—in the history of the nation. For the period from 1882 through 1959, Tuskegee has recorded a total of 4,735 lynchings, of which 73 percent were of African-Americans, and 85 percent took place in the Southern and Border states.¹⁴

In part, the rise of the later Klan was influenced by D. W. Griffith’s racist film epic, Birth of a Nation, which portrayed the early Klan as a romantic defender of Southern white womanhood against the ravages of the freed blacks. Even Woodrow Wilson, a legendary symbol of patrician politics and scholarship, a Presiden...

Table of contents

• Cover
• Acknowledgments
• Prologue: Whatever Happened toDragnet?
• Part One: Occasions
• Part Two: Explanations
• Part Three: Remedies
• Notes
• Index
• Copyright