Today I’d like to talk about the story of a man who wasn’t beaten by the cops, wasn’t arrested by them (at least in this encounter), wasn’t even searched by them. I want to talk about his story because it goes to the heart of the Black encounter with fascist policing today: the everyday, relentless, low-level harassment of Black residents of the US.

Now, I’m far from knowledgable about criminal law generally, much less in the US where these powers differ dramatically between states who hold the general police power*1 and have distinct legislative and constitutional histories. But I do know a few things, one of which is that stopping to detain requires “reasonable suspicion” per the federal constitution, and reasonable suspicion is thus a standard that has to be met across all states and territories. Another is that most law enforcement suspicions don’t meet this standard. Part of what made “Stop & Frisk” unconstitutional was its refusal to abide by the reasonable suspicion requirement.

And yet, the decline of the particular Stop & Frisk program doesn’t mean that cops are now generally abiding by the reasonable suspicion requirement, nor does it mean that rampant distortion of the requirement was ever limited to New York City (not even primarily). Reasonable suspicion requires that there’s a suspicion that criminal activity is happening right now. But even bank robbers take time off to eat lunch. If one has a criminal past, that on its own does not mean that someone is can be reasonably suspected of engaging in criminal activity during every single moment of their lives. Yet that’s exactly the interpretation being pushed by cops in Sacramento, California. Worse, the particular person who was the target of today’s example of fascist policing did not even have a criminal history.

The local CBS affiliate in Sacramento noticed and reported on a video posted to “social media”. In it a man who was being followed by police pulled over voluntarily in hopes that officers would either drive past or answer his questions about why he was being followed. It’s not entirely clear as sources differ, but either the man (who did not wish to be named, but was given the pseudonym “Kash Alpha” for purposes of sharing and discussing the video on social media) or his girlfriend took out a phone and began recording. No matter who began the recording, it’s clear that his girlfriend continued the recording as Kash Alpha is shown in the video without the phone in hand.

Once the recording is begun, the officer who had been following Kash Alpha approaches the stopped car and begins a conversation:

The officer mentions he wanted to see who was in the man’s car and reminds the man that he wasn’t being pulled over by police. The video shows the officer grinning at the camera. He proceeds to call the driver a dangerous man and says he’s just doing his job. When he gets back in the patrol car, he winks at the man and then says, “Every time I see you, I’m going to be looking at you.”

While in this case the officer doesn’t require reasonable suspicion as Kash Alpha pulled over voluntarily to find out what was going on, the officer also makes quite clear that reasonable suspicion doesn’t mean a thing to the Sacramento PD.

“Every time I see you, I’m going to be looking at you.”

Yeah, fuck that shit. And what is the source of this officer’s focus on Kash Alpha? Just this:

The man said he felt the officer was trying to antagonize and intimidate him. He says he was arrested about a year ago by the same officer for having his registered firearm in his car, but no concealed carry permit. No charges have been filed and the man has no other criminal history in Sacramento County.

We’ll leave aside the idea that it can be legal to own a gun but not to actually transport it anywhere. We’ll leave aside that whatever you think of the 2nd amendment (and I personally think it should be repealed and replaced with statutory gun rights protections consistent with self-defense and limited hunting), it clearly does not say, “the right to keep but not bear arms shall not be infringed”. In the current legal context, criminalizing the transport of a firearm in a car by the legal owner of that firearm should be constitutionally impermissible. In fact, in any future legal context, any test imposed on a person to determine whether that person will be legally allowed to own a firearm should also include a test of whether that person can safely transport that firearm, and any permits to own firearms that do issue should automatically include the right of the owner to transport those firearms by accompanying them in a private automobile. If you can’t trust a person carry a firearm in a glovebox, you can’t trust a person to own the firearm at all.

Nonetheless, this was a legal violation in California. But here’s the thing: the officer is justifying harassment using behavior that never resulted in conviction, and arguably is within the spirit of the constitutional protection of the right to bear arms, regardless of the state of the law. In fact, the reason this behavior was unprotected likely had something to do with the fact that preventing a registered owner of a gun from safely transporting it was likely not related to the legislative intent here. Yes, it’s illegal, but no it’s not behavior about which the state was truly concerned. Instead of drafting a more carefully crafted bill (though see my post on the Ambridge/Holy Rosary case for an idea of how hard drafting can be), either California or Sacramento drafted a bill which criminalizes everyday, reasonable behavior and then permits local prosecutors the discretion to decline to prosecute reasonable, everyday violations of the law.*3

So, okay, this officer is an asshole. He took a man who was never suspected of anything more than a misdemeanor charge, was never even indicted on that charge, and has no criminal convictions on his record of any kind (these being different from moving violations, which he probably has just because most drivers have been ticketed at least once), and used that misdemeanor behavior to justify ongoing, constant suspicion. But one officer being an asshole hardly constitutes a systemic problem, right?

Wrong. Or rather, maybe so, but this isn’t one officer being an asshole:

…former Sacramento County Sheriff John McGinness has a different take.

“[Kash Alpha] was arrested before, [the officer] knows who he is. He sees him, he follows him. I think it’s reasonable. I think that’s what most reasonable people would expect of law enforcement,” said McGinness.

McGinness declined to specify the race of “most reasonable people”, but being harassed for a year is far from a reasonable outcome in this case.

So why all this focus on a case where almost nothing happened?

Think about sexual harassment. No one is bothered by a single comment on their appearance, and yet a string of sexualizing statements can seriously impact the ability of anyone to get up, go to work, and get shit done. We know this from scads of research on sexual harassment and hostile work environments. Individual intrusions don’t have to be serious for the pattern to have seriously harmful effects. Ongoing harassment of Black community members because of a single incident of behavior not even serious enough to merit a prosecutor’s time is being justified here by someone once responsible for commanding all the deputies in a populous county. And ongoing harassment is never okay, whether the justification hangs on a conviction or not. I only stress that there was no conviction (not even a prosecution) in this case because I want you to think about how many people that includes. Every person who has possessed marijuana in the last 80 years has committed behavior that constitutes a federal crime. State decriminalization hasn’t changed that. This possession is generally not prosecuted by the feds unless amounts are sufficiently large and/or the feds believe that someone is engaged in certain types of sales but don’t have enough evidence to prosecute the sales themselves. But it is a federal crime.

I never touched pot in high school, even though almost everyone around me seemed to be smoking it. Eventually I tried it because my friends told me that they felt judged by my refusal to smoke. I took a couple hits one night and never did it again. My friends didn’t bother me, and I didn’t have any interest in continuing. Nonetheless, I’ve committed a federal crime similar in magnitude to that of Kash Alpha. Demographically, it’s highly likely that the same cop who harassed Kash Alpha has also committed the same crime. Neither the cop (presumably) nor I (definitely) have been prosecuted for that crime, but that only places us in the same category as Kash Alpha.

So how many Black men have committed a crime of similar severity to Kash Alpha’s, whether prosecuted or not? A huge percentage. How many white men have done the same? A similarly huge percentage.

And yet, what we find is that Black people, especially but not only Black men, are consistently stalked by police in a manner that would immediately be treated as “not reasonable” by the same Sheriff who defended the officer in this case. What we find, in a word, is that harassment such as this is called “good policing” by those we trust to train new officers and set the limits of their authority. What we find is that the law enforcement establishment in the US finds it not only acceptable but actually desirable that we treat Black people in a manner parallel to the way sexual harassers treat their victims. We have established not a hostile work environment for Black people, for indigenous people, for latino/a people, but a hostile national environment. There is no place that is safe from the reach of law enforcement. As terrible as workplace sexual harassment can be, there are still times when a person is not at work. The racialized persons that we pay law enforcement to harass don’t get to pop out of the country for a few hours every day.

This type of misconduct, this type of harassment is quotidian in that word’s literal sense. Yet in other ways this type of harassment should be, must be seen as exceptional. We must not let this continue. We must not allow injustice of this type stand.

While there is a great deal of focus just now on the tasing and beating of Sterling Brown, I think it’s important that we recognize that the police don’t have to tase someone to go too far. The people focussed on the tasing of Brown but who do not protest the treatment of Kash Alpha are the same people who would excuse harassing women out of the workforce because none of the individual incidents of harassment rose to the level of rape.

Tasing a professional basketball player for a parking violation, many believe, is unacceptable but not everyday America. And that’s true. It is both unacceptable and not an everyday occurrence. The problem is that too many of those same people believe that the harassment of Kash Alpha is acceptable. Bella Abzug once said:

“Our struggle today is not to have a female Einstein get appointed as an assistant professor. It is for a woman schlemiel to get as quickly promoted as a male schlemiel.”

We must not get so distracted by the Michael and Sterling Browns that we convince ourselves that if only we can end the shootings and the tasings the problems of US law enforcement will be in the past. Our struggle today is for cops to be just as bored and bureaucratic writing out a parking ticket for a 6′ 6″ Black man on parole for the remainder of a life sentence for multiple murderer as they are writing out a parking ticket for your friendly, neighborhood Crip Dyke.

Accept nothing less.

 

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*1: The general police power is probably not what you think. It’s not at all exclusive to law enforcement and criminal law, but since those are contained within the general police power, we’ll leave that alone for now.

 

*2: Reasonable Suspicion comes from Terry v Ohio, but is probably better and more succinctly articulated in US v Sokolow (not least because the term’s vague original meaning had been debated and refined for many years before Sokolow). Here are a couple explanations of reasonable suspicion by the Sokolow majority. First from the syllabus:

Under Terry v. Ohio, 392 U. S. 1, 392 U. S. 30, the police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity “may be afoot,” even if they lack probable cause under the Fourth Amendment. Reasonable suspicion entails some minimal level of objective justification for making a stop — that is, something more than an inchoate and unparticularized suspicion or “hunch,” but less than the level of suspicion required for probable cause. P. 490 U. S. 7.

Second, from the Rehnquist decision proper:

In Terry v. Ohio, 392 U. S. 1, 392 U. S. 30 (1968), we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity “may be afoot,” even if the officer lacks probable cause.

*3: It’s likely that this section is related to the state’s interest in preventing the theft of guns, which confounds the ability to track a gun used in a crime back to its owner. Consider how the California Attorney General describes the requirements when educating the general public:

Pursuant to California Penal Code section 25610, a United States citizen over 18 years of age who is not prohibited from firearm possession, and who resides or is temporarily in California, may transport by motor vehicle any handgun provided it is unloaded and locked in the vehicle’s trunk or in a locked container. Furthermore, the handgun must be carried directly to or from any motor vehicle for any lawful purpose and, while being carried must be contained within a locked container.

Pursuant to California Penal Code section 16850, the term “locked container” means a secure container that is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device. This includes the trunk of a motor vehicle, but does not include the utility or glove compartment.

The focus on security here isn’t for accidental bumps setting off the weapon: that’s already covered by the requirement that the gun be unloaded during transport. I can’t be sure without looking into the case law and/or the legislative record, but protecting the state’s interest in tracking guns used in crimes is probably what’s going on here.

Ironically, open carry is specifically called out as legal in the same under which Kash Alpha’s behavior was made criminal. It was the “concealment” of the gun by storing it in the glove box while driving that constituted the crime. Yet (as noted in endnotes) the main focus of the law against legal gun owners placing a handgun in a glovebox while driving appears to be preventing theft, which is hardly more likely when someone doesn’t know a gun is present. Leaving a gun in an unoccupied car overnight might constitute a greater risk of theft than open carry, but taking it off your hip while you drive certainly doesn’t. This hypothesis could also easily explain a district attorney’s refusal to prosecute.

 

Although i won’t reproduce the whole section here, Kash Alpha’s behavior appears to be punished under paragraph (a)(7) of § PEN 25400:

(7) In all cases other than those specified in paragraphs (1) to (6), inclusive, by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

Paragraphs (1) to (6) specify aggravating factors for carrying a firearm in a glove box, mostly that the person doesn’t have a legal right to possess the firearm in question and/or that the person has previously been convicted of a crime (with certain categories of crimes called out specifically). What can we know from this? We know that this is a serious misdemeanor under California law, but only a misdemeanor. When a criminal breach is punishable by a maximum jail term of one year or less, the crime is a misdemeanor by definition. Since this is punishable by a maximum jail term of one year, it is punished as seriously as any misdemeanor can be.