Wednesday, March 09, 2016

Walking While Black and Why "Legality" Is a Poor Measure

Here's a pretty common occurrence made special only by the fact the victim had the wherewithal to film it: a man in Cincinnati walks down the street obviously not being disruptive in any way, correctly predicts he's about to be subject to police harassment, and is shortly violently arrested. Seriously, go watch the video -- it's almost like a gag how quickly he goes from predicting he's going to be harassed to the officer being on top of him.

This is an incident that serves as such a great example for how mundane it is. What it's an example of is how poor of a measure of any action the concept of "legality" is.

For one, as noted in the article, the police insist nothing illegal happened (note they don't say nothing wrong happened). And technically speaking, the police are right when they say officer violated no laws. Of course, this in large part stems from the fact that very little an officer is capable of doing is deemed illegal in practice, but that's another post for another day.

But the more important point is that the officer in the video was probably technically correct that the gentleman in the video had jaywalked (it's difficult to tell from the actual video). And jaywalking is indeed illegal! Well, in theory. In practice, it tends to only be illegal for certain groups of people.

These types of what I teach my students to know as "bullshit laws" are a key mechanism for maintaining racist policing outcomes in the face of apparently neutral laws. It's really quite simple -- all you need to do is take something everyone does (like jaywalking) and make it illegal. Then you can technically stop pretty much anyone you want. Obviously you can't stop everyone who is doing this illegal behavior, because then you would be stopping everyone. But you can use it as a pretext to stop someone you otherwise would have no legal right to. This allows the law to appear neutral (jaywalking is illegal for everyone!) while maintaining white supremacy. Or what we would call the "arbitrary and capricious" application of the law, which is supposed to be a bad thing.

And this is one you can study for yourself, boys and girls and people who don't identify with the gender binary! It's quite simple: go downtown and pick a busy intersection at random during a busy time of the day (if you don't live in a big city, I don't know...make better life choices, I guess). Stand at that intersection for 10 minutes and count the number of people who cross the street legally (while the walk sign is animated and within the painted lines indicating a pedestrian crossway) versus the number of people who cross illegally. I would gladly bet everything I own that the jaywalkers outnumber the legal crossers. Hell, I'd be willing to bet the jaywalkers outnumbers the legal crossers by greater than 10 to 1, but that's for you to find out!

Anyway, once you've done that and realized basically everyone jaywalks all the time, you'll be discomforted to learn that the Supreme Court has ruled that as long as someone is objectively breaking the law, the subjective motivations of the officer don't matter and thus are not subject to scrutiny. Which, as anyone with a basic understand of human behavior could tell you will happen (and as libraries of empirical data can tell you does happen), means that an officer just needs to find any minor law broken and then has carte blanche to harass.

Or to bring it back to jaywalking, this would be why one of the only studies I could find on jaywalking while Black found that in Champaign-Urbana, a full 88% of those cited for jaywalking were Black. If you honestly think Black people, who make up roughly 16% of the population there, somehow made up exactly 88% of the people actually jaywalking there during that time period...well, I've got this really sweet bridge I'm willing to sell you for a song...

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