In September 2016, the Massachusetts Supreme Judicial Court ruled that black men who run from police are within their rights to flee. On the one hand, the law gives individuals the right not to speak to police and even ignore or leave the presence of officers if they haven’t been charged with a crime. On the other hand, the Court specified that, in the case of African-American men, reports from the Boston Police Department and the American Civil Liberties Union, “documented a pattern of racial profiling of black males in the City of Boston.”
Thus, while recognizing that flight itself could still be probative as police could reasonably deduce someone running from a crime scene as suspicious behavior, the MSCJ also recognized that the disproportionate and repeated targeting of black males "suggests a reason for flight totally unrelated to consciousness of guilt.” They concluded that, “Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the reports’ findings in weighing flight as a factor” in determining reasonable suspicion.
In the particular case under review, Jimmy Warren, an African American, was arrested on Dec. 18, 2011, by Boston police investigating a break-in. Officers received a description of three black male suspects wearing hoodies and dark clothing. Police later spotted Warren and another black man (both wearing dark clothing but no hoodies); yet, when an officer approached the men, they ran. Warren was later arrested and searched, but police found no contraband. They did, however, recover an unlicensed .22 caliber gun in a nearby yard. Warren was charged with unlawful possession of a firearm and later convicted. Last fall’s decision overruled that conviction. Warren is now free and is still living.
The same cannot be said for Philando Castile, who was killed last summer by police just outside St. Paul, Minnesota. Officer Jeronimo Yanez pulled Castile over believing he matched the description of a robbery suspect (although the reason he gave Castile was a broken taillight), and asked him for his license and registration. Castile, a school cafeteria worker driving with his girlfriend and her four-year-old daughter, explained that he was carrying a licensed firearm and then reached for his documentation. According to Yanez’s testimony, he thought Castile was reaching for a gun, and fearing for his own life, he shot Castile seven times. The rest of this encounter was filmed and live-streamed by Castile’s girlfriend and was entered into evidence along with her testimony.
On June 16, Yanez was acquitted of all charges and is now free. Perhaps Castile would still be alive today had he simply kept driving (although it is just as likely that all three people in the car would now be dead).
What the Massachusetts ruling implies and what Castile’s death (and Yanez’s acquittal) suggests is that people of color in general, and black men in particular, are not only within their legal rights to avoid and even ignore police stops, but that they should. The American legal system cannot be trusted either to protect their rights or prosecute their killers. Along with the Massachusetts reports, the Department of Justice’s studies of Ferguson police (following Michael Brown’s shooting) and Baltimore Police (following Freddie Gray’s death) expose the deep and despicable levels of racism and oppression all too common among police departments and criminal justice systems around the nation. Time and time again, people of color find imprisonment and death at the other end of “official duties,” and time and time again, police officers, their institutions and practices are exonerated.
Despite myriad reports on the existence of racial profiling by police, courts and juries, white people in the United States consistently ignore or disbelieve that blacks are actually discriminated against. In a Pew research study from last year, 30-40 percent fewer whites thought blacks “were treated less fairly than whites” by police, the courts, and even when applying for mortgage loans. The chart below, corroborated by hundreds of studies over the past two decades, demonstrates that whites continue to ignore the persistence and insidious discrimination and violence of racism in America, regardless of hundreds of research studies in the past decade that demonstrate persistent racial disparity in policing, sentencing, school discipline, lending practices, medical treatment, and almost every other public institution. Regardless of what white Americans see, read and learn, they refuse to believe their lyin’ eyes.
But how did we get to this place where white Americans don’t see racial discrimination even though the evidence stares us in the face? Racial profiling in the U.S. dates back at least to the original slave patrols in the South and then the policing of African-American men during Post-Reconstruction. During the last half century, however, police strategies and political dynamics have produced an increasingly draconian and brutal form of profiling that fuels a deep-seated but increasingly volatile white supremacy in the United States. And nothing has been more powerful in this process than the evolution of “Broken Windows” policing.
In the early 1980s, George Kelling and James Q. Wilson published an article in the Atlantic Monthly suggesting that if police focus on quality-of-life crimes such as public drunkenness, graffiti, vagrancy, and vandalism (broken windows), small crimes would not escalate into large ones. The theory, based on anecdotal evidence and one pilot study in Newark, New Jersey, quickly caught the imagination of conservative politicians tired of the 1960s and 1970s trend toward decriminalization and focusing on crime’s root causes. Despite the author’s own caution against police “managing street life,” they explained that more officers walking beats and negotiating community standards could create a “collaborative effort” between police and residents.
Over time, however, these collaborations devolved into practices where police routinely arrested mostly young men of color for minimal infractions. Folded into using anti-gang strategies of building huge data-bases on at-risk youth and then exported as “solid police practices” nationwide, broken windows became stop-and-frisk, then zero-tolerance, and eventually the New Jim Crow. In what geographer Neil Smith called New York City’s “new revanchism,” these policies led to more police brutality, more shootings, sexual assaults, wrongful arrests, and other forms of official corruption. And as Rudy Giuliani and his police chief, William Bratton, became "America’s mayor" and "America’s top cop," their implementation of broken windows also helped change white America’s consciousness of racism itself.
Let me be clear. I am not suggesting that white supremacy ever disappeared from national politics or the instinctive hard wiring of America’s consciousness. But research shows that social movements, desegregation and civil rights laws had impacted cultural, social, and even psychological understandings of race. But the now three-decade assault on people of color by the criminal justice system, the educational system and the banking and real estate systems has not only resulted in more prisons, more poverty and more segregation, they also created a powerful and virulent racial contempt among whites for African Americans. White people’s instinctive hard-wiring now has a narrative framework and shared willingness to ignore facts, research data and even live video of racist acts. Sociologists such as Jenni Mueller refer to this dynamic as “epistemologies of ignorance” as whites consistently participate and benefit from racist systems but maintain their own personal colorblindness.
Even as courts throw out the legality of stop-and-frisk and some places move away from mandatory minimum sentences, etc., the persistence of racist policing and its murderous results survives. Kelling has disavowed the way broken windows was implemented, explaining it was “never meant to be high arrest program.” But it may be too late.
The weekend after Yanez's acquittal, as protests over the Castile verdict continued around the nation, Seattle police shot and killed Charleena Lyles, a 30-year-old African-American woman. Lyles had called authorities to report a break-in, and when police arrived they found her carrying a knife. Her family has said that she was pregnant, tiny in stature and could easily have been subdued, if necessary, by non-lethal means. It is quite likely that white Americans will be convinced by police claims of justifiable force based on life-threatening fears. And once again, amidst broken glass and lyin’ eyes, non-white America may be justified in their decision to flee, or eventually, to fight.