On Race and the Origins of American Policing

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George Floyd, who was killed by a white police officer in Minneapolis on May 25 | Offices of Ben Crump Law

Sam Bisno, Editor-in-Chief

TRIGGER WARNING: If you are triggered by descriptions of violence, skip the italicized parts.

I was 12 years old in 2014 when Eric Garner was strangled to death by New York City police officers on the pavement of a Staten Island street. I remember watching that video, hearing Garner repeat the words “I can’t breathe” 11 times as his life was choked out of him. I was horrified by what I witnessed, of course, but I was also struck by how foreign the scene playing out on the screen in front of me was. I felt like I was watching a movie. I was not afraid then, and I am not afraid today, that something like that might happen to me. I am a white person, and, as I began to understand that day six years ago and understand more with each new act of police brutality in our country, I will never know the anxiety of seeing a police officer approach me and wondering whether I’ll make it out of the encounter alive. The only time I’ve ever been confronted by law enforcement was at the airport last year. I was sitting in the car outside of the gate waiting to pick my dad up when a white airport police officer knocked on my window. 

“Your tags are expired,” he said. 

“I’m sorry,” I responded. “My dad is meeting me soon, and I’m not sure what to do about that right now.”

“Okay, fix it when you get the chance.”

“Will do.”

I rolled up my window and he walked away. My dad arrived a few minutes later. We got takeout Indian food and watched a baseball game. There’s a decent chance that if I were black that exchange would have ended very differently. Eric Garner was killed for allegedly selling individual cigarettes. In February of this year, Ahmaud Arbery was killed by three armed white men—one of them a former police officer—in Georgia for jogging. In March, Breonna Taylor was shot eight times in her home in Louisville by police pursuing a warrant for narcotics (she had none). This week, George Floyd was killed by police for supposedly using a fake bill to buy groceries. “I can’t breathe,” he said as he lay on the pavement.

As I watched the footage of Floyd’s murder, I, like so many observers, was gripped by the conviction that what I was watching was not at all random. Of course, I’m well aware that systemic racism plagues American society, that African Americans are disproportionately pulled over, arrested, abused, killed. But Floyd’s murder in particular, and those words—“I can’t breathe”—illustrated to me just how little things have changed. Between the killings of Eric Garner and George Floyd, a third of my life has elapsed, and still African Americans must fight to their dying breath against the police. I asked myself what was going through the mind of Derek Chauvin, Floyd’s murderer, as he pressed his knee down harder and harder. Was it a conscious act of racism? Up until then, surely, but at a certain point Chauvin must have stopped thinking, must have let his instincts take over. And his instincts told him to kill. Floyd posed no discernable threat, but Chauvin’s gut, his deepest compulsion, was to just keep pressing.

I wanted to learn why that instinct exists, what it is about police culture that breeds such deep-seated racism, so I turned to history. This essay is the result of that exploration.


A Brief History of American Policing

On October 1, 1962, President John F. Kennedy issued a proclamation declaring the week of May 15 to be celebrated annually as “Police Week.” Kennedy signed this proclamation at the height of the Civil Rights Movement. On May 2 of the next year, less than two weeks before the commencement of the first Police Week, local law enforcement officers in Birmingham, Alabama used high-pressure hoses, clubs, and dogs to beat back African American students protesting segregation in the city.

Kennedy was, for the most part, a supporter of the Civil Rights Movement (a month after the events in Birmingham he would order Alabama Governor George Wallace to allow two Black students, Vivian Malone and James Hood, into the University of Alabama), and it is unlikely that he sought to applaud law enforcement officers like those in Birmingham by signing that document.

Whether or not Kennedy intended it, however, his proclamation alludes to the deep and indelible link between American policing and the country’s original racist institution. The key is its second clause: “Whereas these officers have safeguarded the lives and property of their fellow Americans …” One word in particular stands out from the rest: “property.”

The modern premise of a police force, by which officers are paid through taxpayer dollars and are nominally charged with protecting all members of a community, is a relatively recent development. The earliest organized bodies entrusted with reporting crimes and punishing those who committed them in America were the night watches, and the first of these was established in Boston in 1631. Its origins were straightforward: more crime occurred at night, so certain acts, such as “[firing] off a piece” were not allowed “after the Watch is set.” If someone violated one of these rules, “he shall be fined forty shillings, or be whipped.” No central office existed to appoint the members of the watch; no legal authority vested them their power. Boston’s population at the time was only 200, so the watch was essentially a glorified group of neighbors making sure other neighbors stayed in line. Each male citizen was expected to serve on the watch in rotating shifts and was given no salary, but the town’s wealthy residents often paid others to replace them on their shifts. Thus, America’s first police force was in the service of the rich and powerful, who preferred to spend money enforcing their interests than suffer theft without retribution.

The Boston night watch also served another purpose. New England in 1631 was foreign territory to English settlers arriving by boat, a dense and unforgiving forest home to unfamiliar people who would, as Boston’s earliest inhabitants wrote in chauvinistic hyperbole, “tie their prisoners to trees, and gnaw the flesh from their bones while alive.” In addition to penalizing crime within the town, the Boston night watch was responsible for defending against potential invasions from Native Americans. The first American police force not only functioned to preserve wealth lines, but to enforce racial boundaries, too, as a line of defense against those Bostonians saw as sub-human.

The Boston night watch was the first of its kind, but as more and more settlements were established along the eastern coast of what is now the United States, similar local law enforcement entities became ubiquitous. These were usually no more than groups of private citizens concerned, as Kennedy wrote, about losing their property to unreported crime. In the tobacco- and cotton-rich fields of the southern colonies, the most important “property” were slaves. 

Because the South was more sparsely populated than New England, law enforcement often revolved around just one “sheriff”—a member of the landowning gentry whose duties, in addition to reining in crime, included keeping records and running elections. The colonies’ first sheriff, William Stone, was appointed in 1634 in the Shire of Northampton in Virginia, 40 miles east of where America’s first slaves had arrived in Jamestown just 15 years earlier. 

In 1672, King Charles II chartered the Royal African Company, and in 1698, the British Parliament opened the slave trade to all of Britain’s subjects. By the turn of the century, the annual number of transatlantic slave voyages had more than quadrupled from when Stone was appointed, and Virginia’s tobacco production had grown sixtyfold. No longer would a single sheriff suffice; a separate wing of law enforcement was needed to protect the “peculiar institution” of slavery. In 1704, America’s first “slave patrol” was founded in Carolina. Cousins of the night watch, slave patrols likewise had no legal standing. The crucial difference between the two was that the scope of the slave patrol was far narrower. It pursed only those in bondage and punished only the crime of seeking freedom. Patrollers were employed privately by slaveholders and were tasked with apprehending slaves who tried to escape, terrorizing slaves to discourage revolts, and summarily punishing slaves who failed to obey plantation rules.

For decades, slave patrols existed in the South as an effective but extralegal method of maintaining control over African Americans. Then, in the nineteenth century, they became institutionalized. Especially after the War of 1812, southern state governments began retaining state militias to perform two functions that up until then had been carried out by the town watches and the slave patrols: defending against Native American invasions and suppressing slave revolts. Many military academies that operate to this day, such as the Virginia Military Institute, got their starts as arsenals for those militias.

In the 1830s, the familiar, centralized model of local public police evolved and took root. Its advent can be attributed to two factors. First, American cities had become large enough that informal police outfits were no longer efficient; the population of Boston, for example, had ballooned above 60,000 and was doubling every 20 years. Despite mass urbanization, however, crime rates had not increased considerably. Violent crime, in fact, was experiencing a drop-off, so the need for widespread policing was, from a statistical standpoint, not apparent. What had increased, explains Dr. Gary Potter of the Eastern Kentucky University School of Justice Studies, was “disorder.”

“What constitutes social and public order depends largely on who is defining those terms, and in the cities of 19th century America they were defined by the mercantile interests, who through taxes and political influence supported the development of bureaucratic policing institutions.

These economic interests had a greater interest in social control than crime control. Private and for profit policing was too disorganized and too crime-specific in form to fulfill these needs. The emerging commercial elites needed a mechanism to insure a stable and orderly work force, a stable and orderly environment for the conduct of business, and the maintenance of what they referred to as the ‘collective good’ …. These mercantile interests also wanted to divest themselves of the cost of protecting their own enterprises, transferring those costs from the private sector to the state.”

Boston, perhaps unsurprisingly, was the first city in the United States to institute an official, tax-funded law enforcement body in 1838. In the South, slave patrols went from being private gangs to sanctioned, publicly funded police forces that conducted the same arrests and beatings of Black people as before but did so now with legal justification, emboldened by the Fugitive Slave Acts of 1793 and later of 1850.

After the Civil War and the failure of Reconstruction, southern police forces no longer apprehended and abused African Americans for running away from plantations. Instead, they did so for occupying public spaces, attempting to vote, and violating any number of the other Black Codes and Jim Crow laws, the vestiges of slavery, designed to prevent African Americans from achieving equal footing with the ruling white elite.

In the 1860s, vigilante groups that mirrored those of early Boston and the Carolinas were founded for the purpose of preserving white Protestant dominance, the most famous of them the Ku Klux Klan. Over the course of the ensuing decades, these groups lynched thousands of Black people, usually with tacit permission from local police. Between 20 and 30 percent of those lynchings took place in northern states. Only around one in every one hundred lynchers was convicted of a criminal offense.

The Civil Rights Movement secured significant legal and legislative victories for African Americans, most notably in Brown v. Board of Education (1954), the Civil Rights Act of 1964, and the Voting Rights Act of 1965. But these landmark achievements did not spell the end of the imbalance in power between law enforcement and Black civilians. Indeed, during the Civil Rights Movement and in the decades following it, police won their share of political recognition and support from governments and courts, often at the expense of African Americans.

In 1971, President Richard Nixon declared the “War on Drugs,” a campaign against illegal drug use that resulted in the incarceration of several million Americans and disproportionately targeted members of the African American and Latinx communities (to this day, 80% of federal drug charges and 60% of state drug charges are brought against defendants belonging to one of those two ethnic groups). In 1994, Nixon’s chief domestic policy advisor, John Ehrlichman, reflected on the true motivation behind the maneuver in an interview with Harper magazine:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people …. by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

In 1989, the Supreme Court ruled unanimously in Graham v. Connor that “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The decision effectively normalized the fear defense—the argument that a police officer is justified in using excessive force when they fear they might be in danger. 

In 1994, as a direct result of advocacy from police officers, the U.S. Congress passed the Violent Crime Control and Law Enforcement Act, also known as the “Crime Bill.” The largest such bill in the history of the country, it provided for 100,000 new law enforcement officers, guaranteed billions of dollars in new funding for prisons, and expanded the death penalty

Between 2002 and 2013, informed by the “broken windows theory,” which holds that low-level crime opens the door to more serious offenses, New York City practiced the “stop-and-frisk” policy, which allowed police officers to detain and search civilians on the street without definite cause. Over that span, nearly 90% of those stopped were innocent of a crime, and more than half were Black. In 2015, Michael Bloomberg, who authored the policy as the then-mayor of New York, had this to say: “95 percent of murders—murderers and murder victims—fit one M.O. You can just take the description, Xerox it, and pass it out to all the cops. They are male, minorities, 16–25.”

The list goes on.

Police Week 2020 ended on May 16. Nine days later, George Floyd gasped his last, “I can’t breathe.” His death was not random. It was not senseless. It was predictable. It was the result of a brutal and relentless machine, perfected over four hundred years, working as intended.