Blue Lives Matter

COP FRAGILITY AND BLUE LIVES MATTER Frank Rudy Cooper* There is a new police criticism. Numerous high-profile police killings of unarmed blacks between 2012–2016 sparked the movements that came to be known as Black Lives Matter, #SayHerName, and so on. That criticism merges race-based activism with intersectional concerns about violence against women, including trans women. There is also a new police resistance to criticism. It fits within the tradition of the “Blue Wall of Silence,” but also includes a new pro-police movement known as Blue Lives Matter. The Blue Lives Matter movement makes the dubious claim that there is a war on police and counter attacks by calling for making assaults on police hate crimes akin to those address- ing attacks on historically oppressed groups. Legal scholarship has not comprehensively considered the impact of the new police criticism on the police. It is especially remiss in attending to the implications of Blue Lives Matter as police resistance to criticism. This Article is the first to do so. This Article illuminates a heretofore unrecognized source of police resistance to criticism by utilizing diversity trainer and New York Times best-selling author Robin DiAngelo’s recent theory of white fragility. “White fragility” captures many whites’ reluctance to discuss ongoing racism, or even that whiteness creates a distinct set of experiences and per- spectives. White fragility is based on two myths: the ideas that one could be an unraced and purely neutral individual—false objectivity—and that only evil people perpetuate racial subordination—bad intent theory. Cop fragility is an analogous oversensitivity to criticism that blocks necessary conversations about race and policing. Blue Lives Matter exem- plifies false objectivity when it asserts that police should be their own * William S. Boyd Professor of Law and Director, Program on Race, Gender & Policing, University of Nevada, Las Vegas William S. Boyd School of Law. I thank outstanding research librarian, Elizabeth Manriquez, research assistants, Cristiana Wilcoxson, Kyle Hill, and Christiana Dupont, and Administrative Assistants, Car- men Chang and Louis Lim. Thank you to the University of Illinois Law Review for its editing assistance. I also thank Gabriel Jack Chin, Seth Cooper, Daniella Courban, Micky Lee, Alex Kreit, Benjamin Levin, Monika Raesch, Pat Reeve, and especially Nancy Dowd, for helpful comments. I presented versions of this project at the 4th National People of Color Legal Scholarship conference, 2018 Western Law Professors of Color/Conference of Asian Pacific American Law Faculty conference, the 2018 Southwest Criminal Legal Scholarship Conference, and Wake Forest University School of Law. 621 622 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2020 judges of what is appropriate in law enforcement. Likewise, Blue Lives Mat- ter relies on bad intent theory when it implies that only a few “bad apples” create racial disparities. Cop fragility is dangerous because it blames the victims of police misconduct, constructs a false victim status for the police, and undermines civil rights. Racial minority communities will only give police the cooperation they need if they perceive the police to be listening to them. This Article’s specific proposal is for police departments to hold mediated listening sessions with the new police critics based on a proven methodology for medi- ating difficult conversations. The goal is to identify reforms that would re- build community trust of the police. These listening sessions hold the potential to turn police resistance to criticism into meaningful cooperation. TABLE OF CONTENTS I. INTRODUCTION ........................................................................................ 623 II. CRITIQUE AND BACKLASH ....................................................................... 627 A. The New Police Criticism ................................................................ 628 B. The Blue Lives Matter Response ..................................................... 633 1. A Social Movement Built on White Backlash ........................... 634 2. The Legal Movement ................................................................ 637 III. WHITE FRAGILITY AND COP FRAGILITY .................................................. 639 A. White Fragility Theory .................................................................... 640 1. Defining White Fragility .......................................................... 640 2. Debunking the Myth of the Objective Individual ..................... 640 3. Uncoupling Racism from Bad Intent ........................................ 643 B. Blue Lives Matter as Demonstrating Cop Fragility ........................ 646 1. The Police as Omniscient Observers ....................................... 647 2. Bad Apples Theory ................................................................... 648 C. Negative Effects of Cop Fragility .................................................... 649 1. Blaming the Victim ................................................................... 650 2. Shifting the Focus to the Police as Victims .............................. 651 3. Emptying Civil Rights of Content ............................................. 653 D. Other Explanations for Police Resistance to Criticism ................... 654 IV. PROPOSALS .............................................................................................. 656 A. Reject Blue Lives Matter Bills ......................................................... 656 B. Mediated Listening Sessions ........................................................... 657 1. Why the Conversations? ........................................................... 658 2. A Method for Difficult Conversations ...................................... 659 3. Some Limits on These Conversations ....................................... 660 V. CONCLUSION ............................................................................................ 661 No. 2] COP FRAGILITY AND BLUE LIVES MATTER 623 I. INTRODUCTION The starting point for understanding Cop1 fragility is reCognition that there is a new police Criticism.2 Numerous high-profile killings of unarmed blacks between 2012–2016 sparked, then fanned the flames of, the movements that came to be known as BlaCk Lives Matter, #SayHerName, and so on. Those movements are characterized by confrontational methods and deep critiques of the status quo.3 Professor Amna Akbar and others have thus written eloquently about the way reCent BlaCk Lives Matter proposals set up a spaCe of radiCal Contestation.4 The new poliCe CritiCism is also unique in its interseCtional foCus on women of color, including trans women.5 One question this Contestation provokes is, how have the police and their supporters responded to the new police criticism? 1. Even the use of the term “cop” may trigger sensitivity. 2. On Black Lives Matter in general, see Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. REV. 405, 406–21 (2018) (laying foundation for understanding movement’s radical critique); Bridgette Baldwin, Black, White, and Blue: Bias, Profiling, and Policing in the Age of Black Lives Matter, 40 W. NEW. ENG. L. REV.. 431, 431–32 (2018) (tracing Black Lives Matter movement to unjust policing); Melissa Brown et al., #SayHerName: A Case Study in Intersectional Social Media Activism, 40 ETHNIC & RACIAL STUDS. 1831 (2017); Osagie K. Obasogie & Zachary Newman, Black Lives Matter and Respectability Politics in Local News Accounts of OfficerInvolved Civilian Deaths: An Early Empirical Assessment, 2016 WIS. L. REV. 541, 542; Lisa M. Olson, Blue Lives Have Always Mattered: The Usurping of Hate Crime Laws for an Unintended and Unnec- essary Purpose, 20 SCHOLAR: ST. MARY’S L. REV. RACE & SOC. JUST. 13, 49 (2017) (summarizing development of Black Lives Matter movement); Beverly Daniel Tatum, Community or Chaos? Dialogue As Twenty-First Century Activism, 49 U. MEM. L. REV. 285, 290 (2018) (“The repeated failure of the justice system to hold the killers accountable for these deaths gave momentum to the ‘Black Lives Matter’ movement, protesting state- sponsored violence . .”); see also Justin K. Reichman, Police Reform As Preventative Medicine: Reframing Police-Community Violence As A Public Health Law Issue, 22 QUINNIPIAC HEALTH L.J. 289, 300 (2019) (“Over a dozen states have passed ‘Blue Lives Matter’ laws, making any assault or murder against a police officer result in harsher sentences.”). On #SayHerName, see, for example, Michelle S. Jacobs, The Violent State: Black Women’s Invisible Struggle Against Police Violence, 24 Wᴍ. & Mᴀʀʏ J. Wᴏᴍᴇɴ & L. 39, 42 (2017). For an analysis of how police violence against blacks predicts Black Lives Matter protests, see Vanessa Williamson, Kris-Stella Trump & Katherine Levine Einstein, Black Lives Matter: Evidence that Police-Caused Deaths Pre- dict Protest Activity, 16 Pᴇʀꜱᴘᴇᴄᴛɪᴠᴇꜱ ᴏɴ Pᴏʟɪᴛɪᴄꜱ 400, 400–15 (2018). On the deep nature of the new police criticism, see generally Monica C. Bell, Police Reform and the dismantling of Legal Estrangement, 126 YALE L.J. 2054 (2017) (calling police treatment of black communities a contributor to their “legal estrangement”). 3. The radicality of these movements is seen in both their tactics and the nature of their critiques. See Akbar, supra note 2, at 409 (connecting tactics and deep critique). 4. See id. (discussing movement’s attempt to reimagine the state); Baldwin, supra note 2, at 433 (con- tending Black Lives Matter movement addresses

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