.::DEFCON 201 :: Declaration Of Emergency On Black Lives Matter, The Policing Crisis & Call For Action::.
Like many, I’ve seen the United States slide further and further towards authoritarianism, and dictatorship. As I write this, police in New York are using heavy-handed riot-control tactics, including kettling,¹ to encircle, intimidate and harass protesters. As most of us know, many of these protests have started with the resurgence of Black Lives Matter after the death of George Floyd on May 25th, 2020.
While protests on police brutality and racism have gone on for decades, the start of these protests were marked by an unusual event. Shortly after the video of Floyd’s death was posted, a police station in Minneapolis was burned to the ground. For reasons we will get into, this was a climactic moment in the history of our society.
Despite the constant waves of protests, and consistent demands for reform, there has been no real change in either police behavior, or progress in ending police brutality. Today, on CNN, I saw news clips of Attorney General Keith Ellison talking about how difficult prosecuting police officers is.²
Here in New York City, we have been under curfew for several days. Governor Andrew Cuomo and Mayor Bill de Blasio have not made any significant efforts in addressing the protests. Beyond them, leadership from other sectors of the government has been mostly lacking. This, in and of itself, isn’t new — it seems as though we’ve come to expect a lackadaisical response by those in charge. An unfortunate truth is that as a result, people in general have also come to expect the police not to be held accountable for their actions. It has gotten to the point that as a society, we normalized the abuses of authority.
What is new, is that there is now an unprecedented level of public support for peaceful demonstrations against police misconduct and abuse of authority, racism and prejudice. I can’t help but hope that this is what finally tips things in a step towards equality, an end to police brutality, and a way to turn back from the spiraling march towards totalitarianism.
These four points represent a starting ground towards the true reform and change in society:
— Justice for George Floyd via public trial. — An end to curfews, and restrictions relating to peaceful public assembly. — An end of qualified immunity for law enforcement. — An investigation into police brutality and prosecution, handled through grand juries on the Judicial Branch, and investigative officials empowered via their subpoena — not by Internal Affairs departments of the police or Executive Branch officials.
This is not a call for violence; this is a chance to save our country through courts of law, and the tenets of democracy. If these events come to pass without significant change, then we risk stepping ever closer to the void.
My first point, justice for George Floyd, should be obvious. Up until this point, the public had generally given the police the benefit of the doubt. At the beginning of this article, I brought up the Minnesota police station that has burned. What I didn’t immediately highlight is, as of the time of writing, national polling has found that 54% of Americans thought that the burning of a police station was justified. Let that sink in for a moment.
Generally speaking, protests in the United States have been non-violent. When and if it occurs, violence is universally condemned by both individuals and press alike. However, there are times where a turning point is reached, and enough is enough. We, as a society, have reached that point.
Law enforcement has generally been untouchable because, all things being equal, there has been a perception that you can trust the police, and juries will continue to give cops the benefit of the doubt. That, in turn, means that nothing short of an absolutely airtight case against law enforcement could possibly succeed. If this view — one where society as a whole trusts the police — has died, then it means the beginning of the end in regards to the continual miscarriages of justice that we as a nation have borne witness to.
Secondly, let’s talk about curfews. A curfew, on its face, is simple: it is an order from authorities to get off the street, vacate public areas, and return home. Curfews have a long history of being employed during times of war, in order to enforce blackouts, and to curb unrest. These are valid reasons to implement a curfew.
However, we are not currently under an active threat from a foreign power, and the vast majority of protests have been peaceful. So why is there a curfew in place? It’s simple: it provides a legal pretext for anyone who is out and protesting to be immediately arrested and charged for violating it.
As of right now, this curfew order has had little effect on protesters, but it has given the NYPD in particular, the casus belli to essentially grab anyone they want. In the United States, freedom of assembly rights have been curtailed by the Supreme Court, primarily in the form of Cox v. New Hampshire, 312 U.S. 569 (1941). I’m going to quote the findings directly:
“A unanimous Supreme Court, via Justice Charles Evans Hughes, held that, although the government cannot regulate the contents of speech, it can place reasonable time, place, and manner restrictions on speech for the public safety.”³
These types of restrictions can be justified in a general sense. For a very recent example, shelter-in-place orders used to starve COVID-19 fall under these type of restricts. However, at the moment, these curfews do not represent “public safety”, but instead represent a legal weapon to be used against protesters. After all, as long as the protestors remain peaceful, it’s hard to argue in favor of public safety. Since Tuesday, most of the protest activity has been peaceful.
I used the term “casus belli” before. For those who aren’t familiar with it, it’s a latin phrase that translates as “an act or situation provoking or justifying war”. The curfew gives law enforcement the legal ability to intervene without restraint, while continuing to be seen as “doing their jobs”. This is a direct attack on freedom of expression, and freedom of assembly. Repealing the curfew deprives the police of one of the main legal shields being misused as a cudgel to justify their actions. My third point, qualified immunity, is the other major barrier. In short, qualified immunity is a precedent in case law, set by the Supreme Court of the United States, that prevents government offices from being sued. To quote Ashcroft v. al-Kidd, 563 U.S. 731 (2011). Justice Scalia summarized what qualified immunity is very clearly:
“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.”
On its face, qualified immunity seems reasonable. The problem is that immunity of any type creates insurmountable shields. This, when combined with the public in general giving police the benefit of the doubt, ensures that only the most egregious of offenses by law enforcement officials will even stand a chance at justice. There’s a better solution to this problem. Within the American framework of criminal law, legal doctrine recognizes cases where an individual must use force to protect oneself. This is known as the self-defense doctrine. This legal standard can be summarized as following:
“[A] person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another.”
If the self-defense doctrine comes in the play, the defendant can still be charged with manslaughter or homicide, depending on the jurisdiction. If one meets the qualifications for using force in self-defense, they can plead not guilty. It is then the job of the district court to determine the facts, and to determine if such a defense is valid, and it becomes the job of the jury, based on the facts presented, to determine actual innocence or guilt.
An end to qualified immunity would mean that law enforcement and other government officials could be charged directly, instead of through the narrow exception granted by SCOTUS. I recognize that there are legitimate uses of force by law enforcement. It even can go as far as an officer being forced to take another’s life. Those cases can be inscribed in statute, and then the courts and jury determine if such a case is justified.
In military courts, there are actions that automatically warrant a court-martial, such as the loss of a ship. In those cases, the reason for the court-martial isn’t necessarily disciplinary, but it exists to formally set the record straight. Placing those who are empowered to use force against civilians under the same grounds of transparency would be a striking win for society.
Finally, we need a way to burn out the corruption that exists. Known as the “blue wall of silence” among other names, there is a de-facto code of silence in law enforcement societies. It’s not hard to draw a comparison to the mafia’s own code of silence, known as Omertà. It’s difficult to quantify how far this goes, and whether it includes the district attorney, and prosecution offices.
The fortunate thing is, though, that there is in fact a way to do this, that escapes the inheritance basis of internal affairs, or other executive “self-review” units: Grand juries.
Most people think of a grand jury as the subject of a joke, or an example of rubber-stamp justice in action. New York State chief Judge Sol Wachtler was rather famously quoted on “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted”. Having sat on a grand jury in the State of New York, I can understand why that perception exists. It’s because the purpose of a grand jury has largely been forgotten, as well as the power it wields.
Grand juries were created as a check of power on kings, and predate the concept of trial juries. In the United States, on a federal level, as well as in the State of New York, a grand jury is also empowered to subpoena any and all individuals they deem necessary to determine if an incident should be brought to trial. Grand juries also have been used in this country to root out corruption. In the State of New York, Section 190.85 of Criminal Procedure Law specifically grants this power to grand juries:
- The grand jury may submit to the court by which it was impaneled, a report:
(a) Concerning misconduct, nonfeasance or neglect in public office by a public servant as the basis for a recommendation of removal or disciplinary action; or
(b) Stating that after investigation of a public servant it finds no misconduct, nonfeasance or neglect in office by him provided that such public servant has requested the submission of such report; or © Proposing recommendations for legislative, executive or administrative action in the public interest based upon stated findings.
To the best of my knowledge, all 50 states in the Union, as well as the federal government have mechanisms to convenience a grand jury. While the specific rules may vary throughout the country, the takeaway here is that we, the people, need to be in charge of investigating corruption, not an internal affairs unit.
This is for one simple reason: we need to ensure that those in charge of investigating these abuses are not those not bound by the “blue wall of silence”. It’s a method of making sure that the police are truly being held accountable.
As a reminder, refusal to comply with a grand jury subpoena would leave individuals in contempt of court. While grand jury proceedings are confidential, court actions, based on a grand jury’s recommendations, are not. While these actions won’t magically fix the problems in the United States, it would be a legitimate win for liberty, and a step towards the death of institutionalized racism and police brutality. For all those who read this: stay safe. Know your rights. We’re all in this together, and if we stay the course, we have a real chance at real change. Justice will be served when every atrocity is exposed for all to see. Don’t give up, and don’t give in. We have the moral high ground, now. It’s time for change.
~ NCommander (AUTHOR) & DEFCON 201 Staff (including Co-Founders GI Jack and Sidepocket)
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¹https://twitter.com/FredTJoseph/status/1268278764569595905
It should be noted that at the time of writing, it is unclear if the billboards were officially posted by the Governor. Notably, the billboards cite the wrong Twitter account.