BLACK LIVES MATTER

By Thomas Coffin

Recently a group of peaceful protestors gathered in my rural countryside to demand Justice for Black victims of unlawful and often fatal force by police in incidents throughout our nation. Despite the centuries old constitutional right of assembly and speech which protected their actions, the protestors were harassed and intimidated by a hostile contingent of Trump supporters who got wind of the event and travelled in a caravan to disrupt the gathering and attempt to silence their voices.

I have to wonder from this show of antagonism whether the members of the anti-BLM faction could cite any of the Bill of Rights in our Constitution but the one that is placed after our First Amendment, an order which would seem to prioritize speech and discourse over guns and conflict. Perhaps they were emulating their leader, who had recently led an assault by federal police on a peaceful BLM gathering at St. John’s Church in Washington D.C.

Such tactics are the unmistakable marks of despots throughout history. Freedom of expression, which is the flower that blooms from the license to think, differ, discourse, protest, and demand change, is, by contrast, the badge of democracy.

But I mainly wish to address the background and essence of the BLM movement as I see it, although humbly because I am not a person of color who has the personal experience of victims of the injustice that is the focus of the BLM movement. I speak rather as a student of history, and a 45-year career as a federal prosecutor and a federal judge prior to my retirement. In that capacity, I had experience in many civil rights cases involving police interactions and other applications of the criminal justice system with minorities. In short, my experience is such that BLM has very legitimate grievances rooted in a systemic history of disparate and discriminatory treatment of Blacks within our society and within our criminal justice system in particular.

While the Civil War may have ended the “legal” practice of slavery, it clearly did not begin to eliminate the racism harbored by many in our culture and firmly imbedded in virtually all of our institutions. Jim Crow laws and segregation permeated our Southern States and extended deep into the Northern States as well. When Oregon entered the Union, it enacted a Constitution that banned Blacks from residing in the State. Segregation was the norm in our educational system for at least 90 years after the Civil War, as was segregation in trains, buses, hotels, restaurants, theaters, neighborhoods, and everywhere else White people wanted to go without having to mix with Black people. It wasn’t until 100 years had passed after the Civil War that Congress passed a landmark Civil Rights Act. To get even that far, Blacks had to fight every inch of the way, led by courageous leaders like Martin Luther King and many other giants of justice who endured beatings, attacks by police dogs, imprisonment, violence, bombings, and assassinations. It was commonplace during those years of the civil rights movement for local police and sheriffs to play a vital role in efforts to suppress the movement through violence, aiding and abetting lynchings, murders, bombings, beatings, and unlawful arrests and imprisonment of the civil rights activists. My Black roommate in college and I traveled frequently together, and I witnessed him being barred from restaurants which he attempted to enter. We frequently discussed that if we ever traveled together to the South, we would be targeted and murdered. This was at the height of the movement in the mid-1960s.

Until relatively recently, a Black person charged with a crime could not get a person of color on any jury selected to judge him because the law allowed a prosecutor to automatically challenge a juror from serving on the basis of race.

Regarding the penal system, studies demonstrate that average sentences for the same offense is significantly higher for Black defendants than their White counterparts. When I was a prosecutor, Congress enacted Sentencing Guidelines providing exponentially higher mandatory prison sentences for crack cocaine quantities than for the same quantity of regular powder cocaine. The “crack” version was popular among African-American users, the “powder” among Caucasians.

Beyond the prosecution and penal aspects of the criminal justice system, the interaction of the State via police and other local law enforcement reflects a similar pattern. Studies reflect that African-Americans are subjected to deadly force by police during seizures and arrests in significantly higher proportion than Caucasians even though Blacks constitute a smaller percentage of the population. The only societal category with a higher disparity in the use of deadly force are the mentally ill.

The above commentary is a very abbreviated background to the sequence of the widely disseminated instances of deadly force on Black people just over the last few years. Thanks to modern technology, a number of these incidents were recorded on video, leaving graphic evidence to the public on what in past years would easily have been shielded from such scrutiny. Watching George Floyd being methodically choked to death over 9 minutes while spectators were blocked from coming to his aid is horrific visual evidence of the type of police brutality that the Attorney General and Trump casually dismiss as baseless allegations by people who are anti-police. Floyd was hardly the only one—Elijah McClain was similarly choked to death by police in Aurora, Colorado after being stopped just for walking down a street in a white neighborhood. After the fatal encounter went viral, a group of white police officers gathered at the site of his death for what can be accurately described as a trophy photo celebrating the taking of his life. I can go on with other victims, such as Breonna Taylor and a too lengthy list across the country, but these illustrate the frustration and fear within the African-American demographic about the danger to them and their loved ones that has been perpetrated for well over 100 years without accountability for their assailants and without an end in sight. Amazingly in our white privileged culture, an African-American football player was infamously signaled out for retribution by the president himself and banned from professional football for simply protesting by taking a knee during the national anthem.

This is the oppressive atmosphere that justifiably evokes the BLM movement. That demonstrations by BLM spark backlash and forcible disruption by white supremacist elements only highlights the demand and the need for change in police interactions with this segment of our American population which deserves the fullest equality with everyone else in our culture.

Lastly, it is important for people to have a better understanding of police authority when it comes to the use of deadly force on the people they encounter in the performance of their duties, as well as how they are trained.

The definition of “deadly force” is that degree of force which is likely able to cause either death or serious bodily injury. It is only authorized if the police have probable cause to believe the suspect presents a danger of applying deadly force (same definition) to the officer or others in the area. “Probable Cause” means more likely than not. This is where the training of police is of such priority, and how the standards become so slippery as to make accountability for unwarranted force even more difficult.

Police are taught that “action beats reaction every time.” That means in essence that if the suspect possesses a concealed firearm and pulls it to shoot first, the officer will not react in time to defend himself. Thus the standard of “probable cause” becomes less than a factual verification of the suspect being armed and dangerous but more of an assumption that he is armed if the officer cannot verify he is not. This was illustrated by an actual case I was involved in during my career: an African-American was stopped for a traffic infraction and had his hand in his pocket when the officer approached. The officer assumed he was reaching for a gun and fatally shot him. He had no gun. The officer supplied the probable cause with the assumption that what he couldn’t verify was not there was in fact there. He embellished that conclusion by citing eye movement and nervousness on the part of the driver. “Action beats reaction every time.” Of course, civilians are not trained in how police may interpret their every move in an encounter, and innocently make moves (like reaching into their car for their driver’s license or being nervous and moving their eyes around) that result in their death. The problem is exacerbated for African-Americans, as numerous psychological studies demonstrate that a large segment of White people harbor either explicit or implicit bias against people of color, which can evoke fear as well as other reactions in their interactions.

Thus training must be an element of the remedy to the systemic problem of White-police encounters with African-Americans. Yet our president and current Attorney General deny there is any such problem, and the president even scorned such psychological bias training of police and others as “un-American.”

I hope this essay sheds some light on a very important national crisis that needs the full attention of the Biden/Harris administration. I have every confidence that the new administration will do so. And at least the recent events in my neighborhood inspired me to purchase some Black Lives Matter lawn signs. I encourage everyone to do the same and stand up for Justice.