HAVING LEX: A Look at Things Legal
THE EXPANDABLE OTHER: NEITHER JUSTICE NOR PEACE
By: Paul S. Marchand
Mr. Preston King, welcome back to America and to my home....
-Hon. William A. Bootle, United States District Judge, retired, February 23, 2000.
Gun!
-NYPD officer Sean Carroll, initiating the confrontation that led to the shooting death of Amadou Diallo.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.
-The Rev. Martin Luther King, Jr., Speech, Washington, D.C., August 28, 1963.
Goddammit, look! We live here and they live there. We black and they white. They got things and we ain’t. They do things and we can’t. It’s just like living in jail.
-Richard Wright, Native Son, Book I
Never apologize and never explain - it’s a sign of weakness.
-Spoken by John Wayne in She Wore a Yellow Ribbon, Screenplay by Frank S. Nugent and Laurence Stallings.
No justice, no peace.
-Slogan, apparently coined after the Rodney King verdicts, Los Angeles, 1992
Events have a curious way of occurring in sets of two. And so, this “Having Lex” is necessarily a tale of two towns called Albany, of two black men, and of two stories of the justice system, one of which ends happily, the other one of which does not.
On Wednesday, February 23, 2000, political science professor Preston King, who fled this country 37 years ago rather than serve an 18-month prison sentence for draft evasion, met with William A. Bootle, the Federal District Judge who had sentenced him those many years ago, and who was later instrumental in securing for Professor King a Presidential pardon. King’s story is one that reminds us forcibly of an everyday bigotry that still finds much support in American society. King had been a graduate student at the London School of Economics, when his draft board, on discovering he was black, yanked his student deferment, and ordered him to report for induction into the United States Army. When King reported for induction, his all-white draft board, which made a routine practice of addressing white inductees as “Mr.,” insisted upon addressing Mr. King as “Preston.”
Rather than acknowledge the effort of the draft board to relegate him to inferior status because of his skin color, King refused induction, was tried, and sentenced. Rather than serve a sentence which would constitute acknowledgment and acceptance of the proposition that the dignity of a black man in American society is, and of right ought to be, a lesser thing than the dignity of a white person, Preston King went into an exile that lasted nearly four decades. Nevertheless, the Preston King story can at least be said to have had something of a happy ending; thanks to the efforts of the very judge who had sentenced him, Professor King, who now lives in the United Kingdom, and whose daughter is a Member of Parliament there, was able to return to his hometown of Albany, Georgia.
Yet, if Judge Bootle could welcome Mr. Preston King back to America and to his home, the events in another Albany, – Albany, New York– demonstrate that the reconciliation implicit in Judge Bootle’s words is neither as authentic nor as complete as perhaps it ought to be. For just two days after one black man, an African-American, was able to return to his home, the killers of another black man, West African immigrant Amadou Diallo, were acquitted on all charges arising from the February 4, 1999 shooting that left Mr. Diallo dead and the nation transfixed. The incident occurred when Sean Carroll, one of four plainclothes New York cops who had entered the foyer of Diallo’s building because they purportedly thought Diallo was behaving “suspiciously,” saw Diallo removing a wallet from his pocket, panicked, and yelled “Gun!.” A thunderous fusillade rang out. When all the sound and fury were over, Carroll and the other officers had fired forty-one rounds, of which nineteen had struck the twenty-two year old black man, an immigrant who had come to this country seeking the opportunity for which America stands, killing him.
When news of the Diallo verdict reached me, there came over me that same sort of sinking feeling that I experienced back in 1992, when a jury in Simi Valley acquitted four Los Angeles cops charged in the Rodney King beating incident. It was difficult then, and is difficult now, to avoid forming an opinion that in some way justice has miscarried. Though it is impossible to know what transpired in the jury room in Albany, New York, a certain nagging feeling arises that the result would have been rather different had these four cops been confronting not a black immigrant from west Africa but a white immigrant from Western Europe. It appears that 135 years after the end of a great Civil War fought to free the black man, to redeem the pledges of equality made in the Declaration of Independence, and to expiate our nation’s original sin of the Peculiar Institution of chattel slavery, we are still a very long way from being even close to living in a nation where we are not judged by the color of our skin, but by the content of our character.
If anything, the Diallo verdict reminds us once again that when black people are involved, there seems to be rather different calculus of proof and justification to be used by law-enforcement. Indeed, in much of the law-enforcement weltanschauung, anything a person of color does seem to be considered automatically suspect: “we black and they white. They got things and we ain’t. They do things and we can’t.” Like the Rodney King verdict the better part of a decade ago, the Diallo verdict reminds us that black people tend not to receive the benefit of the doubt from law-enforcement, but are instead the subject of an implicit presumption that whatever a black person does is somehow criminal.
Indeed, it is apparent that much of the law-enforcement paradigm regards –at least implicitly– a large part of its function as keeping the lower classes, who often tend to be of a darker tint than are the upper classes, in line, obedient, and as far as possible out of our neighborhoods, except insofar as they are required to perform domestic services, keep our gardens tended, or do other sorts of work which we ourselves will not. Moreover, it is natural and inevitable that much of the mentality underlying police work should focus upon the assumption that in some way everyone with whom the average street cop deals is guilty of something, or is planning something, or has some sort of suspicious agendum.
Thus, the Diallo verdict has reinforced a social contract that exists between the white community and police agencies which in many ways relies for its existence upon the principle of the expendability of the Other. In return for policing a social paradigm designed to protect and reaffirm the traditional dominance of the white and the wealthy, and in return for being willing to stand as a living barrier between the well-groomed enclosures of the haves and the presumptively criminal inhabitants of the decaying tenements of the have-nots, our cops demand and receive from us a tacit agreement on our part to look the other way when, from time to time, their policing of that social order produces what military parlance might refer to as “collateral casualties.” And one neither explains nor apologizes, for to do so is often considered an unacceptable sign of weakness.
Yet, in looking the other way, we who live in our gated communities, or in our nicer neighborhoods, who drive our expensive late-model cars, and who enjoy as a general rule a much less tense relationship with law-enforcement than do our poorer, darker, neighbors, stand complicit in the creation of an Other, whose lives and dignity we perforce regard as being of a significantly lesser value than our own. In many ways, black people, particularly black men, fill the role of the Other to perfection; there is an immediate and obvious physical differentiation based upon skin color, there are often distinct cultural markers, language patterns, and behaviors which strike persons unfamiliar with either African-American or native African culture and history as being strange, even outlandish. If, for many Americans there is still, even if several generations removed, a common European frame of reference, there is no such frame of reference for the African-American, except insofar as a European frame of reference has become part of the heritage of African-Americans through the experience of the Peculiar Institution.
Consequently, it is certainly quite probable that when four White New York cops confronted a recently-arrived West African immigrant, there existed a vast cultural and racial gulf that made understanding and communication difficult if not impossible. The four cops in question thus fell back upon a poisonous frame of reference composed of that witches’ brew of racial insecurities, group prejudices, and ancient dislikes which has so poisoned the dialogue between the races in this country. Indeed, it is questionable whether at the moment that they encountered Amadou Diallo, these four policeman were even capable of looking past a conditioned reflex equating black with criminal to see not merely a human being, but in fact human being in a strange place trying to come to terms with a culture not his own in a language that until recently had been foreign to him.
As perhaps the ultimate Others, we who are gay or lesbian, ought to view with alarm the Diallo verdict, representing as it does a reaffirmation of the overall willingness of so much of society to look the other way whenever a confrontation occurs between our law-enforcement apparatus and a member of a community that for whatever reason neither shares nor participates in the common social paradigm or the perquisites that accompany it. The defense that the officers reacted by shooting Amadou Diallo nineteen times because they thought his wallet was a gun ought to be one that is credible not to African-Americans nor to queer folk. For we who are queer know that a similar defense has often been used to justify violence against us; the so-called gay panic defense, in which a perpetrator claims that he or she will the subject of an unwanted homosexual advance often suffices to convince juries that the violence in question was not merely justified by exigent circumstances, but that in fact the victim deserved what he or she got.
The same jury that was ready, willing, and able to acquit four white cops, apparently on the implicit theory that Amadou Diallo deserved what he got, would in all likelihood be ready to excuse or explain away similar police violence against homosexuals. Indeed, our very existence deeply offends a great many social conservatives, and great many staunch supporters of “law and order.” Our foreignness is often even more galling to our adversaries than is the differencing represented by the African’s or the African-American’s skin color and non-European cultural heritage. Our foreignness, because not easily ascertainable, enrages and frightens a great many in our society for whom outward appearances form the basis of their evaluation of the individual. Since it is not necessarily easy to tell from looking at a lesbian whether she is sexually attracted to other women, or from looking at a gay man to tell whether he prefers the company of other man, our sexuality, which is the mark of our differencing, remains as deeply subversive and upsetting today as it ever has been.
We should never forget that until such time as we as homosexuals have obtained through legislation and the progressive accretion of common-law precedent the same legal standing as heterosexuals now enjoy, we too will be an Expendable Other. While not all of us necessarily bear those outward aspects which in the minds of law-enforcement in particular and much of the white community in general are the stigmata of presumptive criminality, such as dark skin, we nevertheless continue to represent a perceived threat to a social order which a great many of our straight neighbors feel is so delicate, so fragile, and in such danger of destruction, that they continue to seek to compass our destruction through legislation, adverse court precedent, and any other means available to them.
As long as the shooting death of an Amadou Diallo can go unexamined, and as long as we are willing to except at face value the self-serving explanations of his killers, and as long as we are prepared to indulge in willful ignorance of the misdoings of the police agencies whom we entrust with the preservation of our paradigm, as has until recently been the case in Los Angeles, where the growing scandal of the misconduct of officers in the Rampart Division has only recently seen the light of day, though it has been going on for years, we will continue to fail to achieve any kind of meaningful justice within our society, and we will continue to find that domestic peace and tranquility necessarily evade us; no justice, no peace.
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Paul S. Marchand is an attorney who lives and practices in Cathedral City, California. The Cathedral City Archived blog is a nonsystematic collection of materials to which reference is sometimes made in the Cathedral City Observed blog, also written by Mr. Marchand.
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