Hastings Constitutional Law Quarterly Volume 48 Number 1 Fall 2020 Article 3 Fall 2020 Black Lives Matter: Banning Police Lynchings Mitchell F. Crusto Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Mitchell F. Crusto, Black Lives Matter: Banning Police Lynchings, 48 HASTINGS CONST. L.Q. 3 (2020). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol48/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. BLACK LIVES MATTER: BANNING POLICE LYNCHINGS Black Lives Matter: Banning Police Lynchings by Mitchell F. Crusto1 Table of Contents Introduction .................................................................................................. 4 I. Unequal Justice ......................................................................................... 9 A. Kill Policy ........................................................................................ 10 B. The Movement ................................................................................. 15 C. Conundrum ...................................................................................... .19 II. George Floyd Anti-Lynching Code ....................................................... 26 III. Equal Justice ......................................................................................... 27 A. Executions ....................................................................................... .28 B. Systemic Racism ............................................................................. .59 C. Lynching ......................................................................................... .63 Conclusion .................................................................................................. 68 Addendum I: The George Floyd Anti-Lynching Code ............................... 69 Abstract: In the United States, police officers are granted a license to use lethal force and are subsequently exonerated from personal criminal liability for fatal killings, particularly when the victim is an African American. This Article advances the normative claim that the Court’s death penalty jurisprudence, including the “Cruel and Unusual Punishment” Clause of the Eighth Amendment, protects the victims of police homicides. Further, it contends that the police use of lethal force against African Americans constitutes “lynching”—a State-sponsored act of terror that supports systemic racism. Finally, it posits that the Constitution mandates that the 1. J.D., Yale Law 1981; M.A., Oxford 1985; Distinguished Henry F. Bonura, Jr. Professor, Loyola University New Orleans College of Law. Thanks to Loyola students Lindsey Freihoff, LaTreshia A. Hamilton, and Jillian Morrison; and to my colleagues at the John Mercer Langston Writers Workshop. [3] BLACK LIVES MATTER: BANNING POLICE LYNCHINGS 4 HASTINGS CONSTITUTIONAL LAW QUARTERLY Vol. 48:1 police use of lethal force be abolished—a transformative solution to save Black lives and to achieve equal justice. Introduction** In Louisville, on March 13, 2020, Breonna Taylor, a twenty-six-year- old Black2 female emergency room technician, was slain while asleep in her bed in her home.3 Taylor was killed by at least eight of the more than twenty bullets fired by three white male plainclothes police officers who used a battering ram to force open the door while raiding her home pursuant to a no-knock warrant.4 In Minneapolis, on May 25, 2020, the media broadcasted a cellphone video of four police officers detaining a Black male who was handcuffed and lying face down in the street.5 One white6 male officer continuously pressed his knee to the man’s neck, while two white male officers applied their knees to his back and legs, as another male police officer looked on.7 The detained man repeatedly cried out, “I can’t breathe.”8 The chokehold lasted for eight 2. This Article capitalizes the “B” in “Black,” when referring to Americans of the African diaspora. See generally Kwame Anthony Appiah, Opinion, The Case for Capitalizing the B in Black, THE ATLANTIC (June 18, 2020), https://www.theatlantic.com/ideas/archive/ 2020/06/time-to-capitalize-blackand-white/613159/; Dean Baquet et al., Uppercasing ‘Black’, N.Y. TIMES (June 30, 2020), https://www.nytco.com/press/uppercasing-black/ (announcing that the New York Times is capitalizing the word “Black” when describing people and cultures of African origin). Throughout this Article, I intentionally interchange the use of the words “Black” and “African American. 3. See Arian Campos-Flores et al., Police Killing of Breonna Taylor Fuels Calls to End No-Knock Warrants, WALL ST. J. (May 24, 2020), https://www.wsj.com/articles/police- killing-of-breonna-taylor-fuels-calls-to-end-no-knock-warrants-11590332400. Black women are victims of varying forms of police brutality, including fatal shootings, rape, and maiming. See Mary-Elizabeth Murphy, Black Women Are the Victims of Police Violence, Too, WASH. POST (July 24, 2020, 5:00 AM), https://www.washingtonpost.com/outlook/2020/07/ 24/police-violence-happens-against-women-too/. See generally KIMBERLÉ CRENSHAW ET AL., SAY HER NAME: RESISTING POLICE BRUTALITY AGAINST BLACK WOMEN (2016). 4. Campos-Flores et. al., supra note 2. 5. Evan Hill, 8 Minutes and 46 Seconds: How George Floyd Was Killed in Police Custody, N.Y. TIMES (May 31, 2020), https://www.nytimes.com/2020/05/31/us/george- floyd-investigation.html?auth=login-email&login=email (George Floyd was arrested for allegedly passing a counterfeit twenty-dollar bill) 6. This Article intentionally notes that the officers who kill Blacks, particularly Black males, are white males, which raises masculinity issues that are beyond the scope of this Article. See generally Frank Rudy Cooper, “Who’s the Man?”: Masculinities Studies, Terry Stops, and Police Training, 18 COLUM. J. GENDER & L. 671 (2009) (examining how masculinity contests specifically, and masculinities studies generally, affect policing). 7. Hill, supra note 4. 8. Id. BLACK LIVES MATTER: BANNING POLICE LYNCHINGS Fall 2020 BLACK LIVES MATTER 5 minutes and forty-six seconds, resulting in the man’s death.9 That person’s name was George Floyd.10 In Atlanta, on June 12, 2020, Rayshard Brooks, a twenty-seven-year- old Black male, was shot and killed by a white male police officer.11 Brooks was shot twice in the back as he ran away from two police officers. His crime was “driving” while intoxicated, despite being asleep and parked in a Wendy’s drive thru.12 The police killings of Rayshard Brooks, George Floyd, and Breonna Taylor13 compel examination of the legality and the morality of the police use of lethal force—raising disturbing questions about racial animus, systemic racism, and institutional racism against Blacks.14 In response to these questions, this Article contends that the police use of deadly force serves two purposes: first, it terminates the life of a Black person, usually a male, who refused to readily submit to police authority, and second, it terrorizes Blacks and thereby reinforces white supremacy. Thus, the police use of lethal force is both a moral issue and legal crisis that needs a transformative solution. The recent police killings of Blacks, along with similar recent atrocities,15 have re-ignited the Black Lives Matter Movement (the “Movement”).16 The Movement demands an end to racial injustice and 9. Id. 10. Id. 11. Helena Oliviero et al., Who Was Rayshard Brooks?, THE ATL. J. CONST. (June 14, 2020), https://www.ajc.com/lifestyles/who-was-rayshard-brooks/lWjd3oZvR5D9QZywptiGkP/. 12. Id. 13. These recent questionable uses of lethal force join those of Michael Brown, Tamir Rice, Trayvon Martin, Rodney King, and so many others. 14. See infra Part I, B. 15. For example, near Brunswick, Georgia, on February 23, 2020, Ahmaud Arbery, a Black male, was jogging when two white males, claiming they acted as civilian law enforcement, shot and killed him. See Richard Fausset, What We Know About the Shooting Death of Ahmaud Arbery, N.Y. TIMES (June 4, 2020), https://www.nytimes.com/article/ ahmaud-arbery-shooting-georgia.html. In Aurora, Colorado, on August 24, 2019, Elijah McClain, a 23-year-old Black male, while walking home and unarmed, was stopped by white police officers. One officer placed McClain into a carotid hold, cutting off the flow of oxygen to his brain. Paramedics gave McClain ketamine to sedate him, while the officers held him down for fifteen minutes as McClain went into cardiac arrest. McClain was declared brain dead on August 30, 2019. See Stephanie Guerilus, After Elijah McClain Was Killed by Police, a Petition Signed by More than 2M Seeks Justice, THE GRIO (June 24, 2020, 6:10 PM), https://www.aol.com/article/ news/2020/06/24/after-elijah-mcclain-was-killed-by-police-a-petition-signed-by-more-than- 2m-seeks-justice/24535890/ 16. See Alicia Garza, A Herstory of the #BlackLivesMatter Movement by Alicia Garza, THE FEMINIST WIRE (Oct. 7, 2014), https://thefeministwire.com/2014/10/blacklivesmatter-2/; Herstory, BLACKLIVESMATTER, https://blacklivesmatter.com/herstory/ (“Black Lives Matter BLACK LIVES MATTER: BANNING POLICE LYNCHINGS 6 HASTINGS CONSTITUTIONAL LAW QUARTERLY Vol. 48:1 oppression in America,