“Thinking Blackly”: State violence, U.S. law, and legal death dealing
As Black beings, we must always look out for legal death dealing.
by Tabias Olajuawon
When a person of color is killed by a police officer, or badgeless vigilante, it exposes and strikes at the immoral fabric of Amerikkka. More viscerally, at the psyche of every person of color with a beating heart. More pointedly, at the very being of the collective Black body.
Each strike, blow, or shot to their flesh pierces through our collective identity and consciousness in ways sometimes articulated by great poets, demonstrated by activists old and new, and mapped by social workers, theorists, and spiritual gurus.
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Much more often, however, we do not have the words or faculty to articulate the fire that emanates within our bones; gifting us with a source capable of birthing both revolutionary rage and cancerous infernos. We become combustible—living burning articulations of rage, feeling, and truth beyond language.
Indeed, we must. There are some things that simply cannot be spoken, because the tongue was never meant to fathom such violences. The tongue is meant to communicate things that are familiar to human being and beings, and the current state of Amerikkkan-sanctioned annihilation of Black people is certainly not that.
The current state is: One of out of three Black men will be captured and held in some type of state bondage in their lifetime. Black people make up 32 percent of all people killed by police, despite being on 13 percent of the population. We also make up 39 percent of those killed by police, where the victim is not accused of attacking the officer. Half of all people who died at the hands of police are surviving some type of mental disability. Racial minorities make up 62 percent of all unarmed people killed by the police, and this does not include those who are killed for exercising their right to bear arms.
Qualified immunity. That is what it has been titled legally, officially when police are vindicated for the murder or use of excessive force against Black people. However, the immunity is almost never qualified in practice, or really, in law.
Last week, the Supreme Court in Kisela v. Hughes ruled that officers are entitled to “qualified immunity” when the excessive force used does not violate any “clearly established rights…that a reasonable person would have known.” The case cited is illustrative of what reasonable means.
In this case, a neighbor called the police on Ms. Kisela. She had been outside her home, hacking away at a tree with a knife. When the four officers arrived on the scene—separated by several feet and a chain link fence—they ordered Ms. Kisela, who was standing a few feet from her unalarmed roommate, to drop the knife. She hesitated. She was then shot four times by Officer Hughes.
Predictably, the officer stated he feared for the roommates life. No other officer shot. The roommate never asked for help or felt alarmed, according to her signed statement. Even so, the Supreme Court disallowed Ms. Kisela to sue, because she had no clearly established right that a reasonable person would have known. In short, she had no right to life.
In summing up the case, Justice Sotomayor, in a dissent joined by Justice Ginsburg states of the ruling: “It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished”
Of course, we knew this. We have heard the “I feared for my/their life” argument several times before. It has become an echo to what we were first told by Chief Justice Roger B. Taney after the Dred Scott decision:
“[African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.”
When it comes to death dealing, the police will not hesitate and they will not be adequately punished. Black death, like Black life, is illegible to both law and law enforcement; unless said death can be laid at the feet of a Black assailant.
Stephon Clark was killed for holding a cellphone that somehow magically transformed into a gun, allowing officers to fear for their lives and shoot him twenty times. No charges have been filed. Saheed Vassel, was shot in New York, for holding a shower head that was transformed under the blue gaze into a pistol. No charges have been filed.
Last week, LaKeith Smith—an unarmed fifteen year old at the time of the “crime”—was sentenced to 65 years in prison for the police killing of his friend. Under Alabama’s accomplice liability law, you can be charged for any murder that happens in the commission of a crime, even if the police are the ones who kill them.
As Black beings, we must always look out for legal death dealing.
In the midst of the ongoing police theft of Black lives, as a former student attorney and forever poet, I want to think Blackly about law and justice. That is to say, I want us to begin to think about law from the experience and knowing, the memories, the present and the past, which is in many ways not truly in the past—the ongoing legal, racial-sexual terror, from slavery to the present—of the Black body.
I want us to imagine the United States Constitution as our bodies—the collection of DNA and memories and magic from 12 million enslaved Africans—might have always, already known it. To “Think Blackly” about the law is not to simply translate what it proscribes as just and right, into African American vernacular—from the obscure, elitist, white language and logics from which it arises—but to instead remember, recall, and testify as to the origins and purposes of these laws.
Michelle Alexander reminds us, in The New Jim Crow, that slavery and Jim Crow never ended but re-embedded themselves in laws and daily practices, some that we have often viewed as emancipation. In particular, the 13th Amendment.
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2.” 13th Amendment of The Constitution
Consider, that the very law abolishing slavery, allows for one to be considered a slave of the state, as punishment for a crime; today we call it prison. “Thinking Blackly” or thinking from the experience of the Black body, as a legitimate way to analyze law and punishment might have us think about prisons, prisoners, and criminality in a completely different way; a sort of state-mandated passport back to the 1800s.
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This, of course, is in opposition to how we are disciplined and taught and made and incentivized to understand it. I want to think and posit “Thinking Blackly” not in opposition to white jurisprudence but as a sort of wake work, an honoring and defense of the dead, a witnessing of truths present and past, passed down. A type of Black buoyancy through the wake of tragedy and survival despite the ongoing catastrophe of the anti-Black weather of current Amerikkkan politics.
I want to think about what my friends and public intellectuals Preston Anderson and Chelsea Neason have titled “sightedness”—an ability to see beyond what is presented. I want us to consider for a moment what might happen if the Constitution saw Black people as human. If not this, then imagine what would happen if Black people began to see the Constitution as fundamentally inhumane and anti-Black, and ripe for a new type of reckoning.
Tabias Olajuawon, JD is creator, author and legal scholar. He is currently a PhD student in African & African Diaspora Studies.