“The aftermath of nonviolence is the creation of the beloved community, while the aftermath of violence is tragic bitterness.”1
On May 25, 2020, George Floyd was lynched.2 He was killed, in public, on video, in a brutal and agonizing manner—with a knee crushing his neck until the life was choked out of him.3 Nationwide protests and riots4 were sparked by the stark brutality of the killing, the utter nonchalance of Derek Chauvin5—the officer whose knee pinned Floyd’s neck to the concrete—during the homicide,6 and the complicity of the other three on-scene officers who all chose to do nothing rather than intervene to save the life of a man who repeatedly said “I can’t breathe,” “Mama,” “please,” and “I’m about to die.”7 Of the eight minutes and forty-six seconds that Chauvin knelt on Floyd’s neck, two minutes and fifty-three seconds passed “after Mr. Floyd was nonresponsive.”8
The killing was a concretized metaphor—a horrific symbol of the many ways that white supremacy has its knee on the neck of Black America.9 In the face of such unadorned State-sponsored violence, citizens across the country responded with protests on an unprecedented scale.10 Protests occurred in all fifty states,11 with some cities drawing daily protests.12 The protests saw their peak on June 6, 2020, when, on a single day, more than 550 locations boasted a combined half-million protestors.13 In the weeks after Floyd was killed, as many as 26 million people in 1,360 counties protested, potentially making the protest movement the largest in U.S. history.14 The protests were widely noted for their diversity.15 The diversity of the protests is a hopeful signal about the potential for systemic reform.16 The diversity of the protests, however, did not shield participants from some of the most brutal crowd suppression tactics seen in decades.
Though most protests remained entirely peaceful,17 some devolved into property damage, graffiti, and theft.18 This was seized upon by local and federal authorities as a pretext for violent disruption of local protests.19 As the protest movement continued—largely undeterred by police violence—officers often “met peaceful protesters . . . with disproportionate and brutal force, often for no reason but to ‘disperse’ a crowd.”20 The response to these widespread protests against police brutality proved the protestor’s thesis: a militarized police force responded with extreme violence.21 A sampling of incidents captured on video included: (1) ubiquitous use of tear gas and pepper spray—the former of which is a chemical agent banned in war;22 (2) a phalanx of officers in riot gear shoving a seventy-five-year-old man to the ground and stepping over his body as he bled from his fractured skull;23 (3) police officers violently confronting and tasing two college students to remove them from a vehicle;24 (4) widespread targeting of journalists, media, medics, and legal observers by police;25 (5) indiscriminate firing of projectiles into crowds of protestors;26 (6) use of questionable crowd control techniques such as “kettling,” thereby “effectively turning peaceful demonstrations into tense affairs or confrontations;27 and (7) the use of tear gas and rubber bullets to clear protestors from church grounds for a presidential photo-op.28 The militarization of local and federal police was on full display.29 Though they could not have known it in the moment, the protest movement would ultimately lead to the successful prosecution of Derek Chauvin for second-degree murder.30
Yet, jarring images of police in camouflage fatigues with assault-style rifles patrolling American streets aside,31 the State’s monopoly on violence has long been a central theoretical feature of the State.32 Max Weber’s classic essay, Politics as a Vocation, defines the notion: “Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”33 But, to accept that “[e]very state is founded on force”34 is a specific and profound conception of the fundamental nature of the State – one that centers and perpetuates violence.35 Concentrated monopolistic power tends toward corruption in the private sector.36 Perhaps so too in the public sector.
President Joe Biden was elected in the wake of the Black Lives Matter protests that followed the murder of George Floyd. The protests sparked voter registration drives and created a surge of donations;37 these efforts were important to—and may have been decisive given—President Biden’s slim electoral college victory.38 On his first day in office, President Biden signed Executive Order 13985 to establish a policy-level recognition of the importance of advancing racial equity.39 And in the wake of Chauvin’s conviction for murdering George Floyd, President Biden celebrated the verdict and noted that “In order to deliver real change and reform we can and must do more to reduce the likelihood that tragedies like this will ever happen . . . again.”40 Biden went on to say that “Black and brown people” should not have to “fear the interactions with law enforcement.”41 He acknowledged that this would require “confronting, head on, systemic racism and the racial disparities that exist in policing and our criminal justice system more broadly.”42 And in Biden’s view, this work must involve the federal government.43
Yet, some 100 days into Biden’s presidency, no substantial federal effort has been undertaken to begin demilitarizing local police departments. As of yet, no restrictions have been placed on the so-called 1033 program that enables the transfer of excess military equipment to local police departments.44 The program is responsible for the transfer of hundreds of millions of dollars’ worth of military equipment to local police departments each year.45 These increasingly militarized police forces, in turn, wield their capabilities against the public generally and marginalized communities disproportionately.46 Prominent civil rights groups and members of Congress have called for an end to the program;47 but no end is yet in sight.
When it comes to reigning in the use of quasi-military force by police officers, the urgency of now is great. Even as the trial of Derek Chauvin for killing George Floyd was ongoing, the highly publicized killings of other young men of color have sparked protests. In Minnesota, a mere ten miles or so from the courtroom where Chauvin’s trial was underway, Daunte Wright was killed by a veteran police officer after having been stopped, apparently, for having expired tags on his car.48 In Chicago, a video was recently released showing the killing of thirteen-year-old Adam Toledo by a Chicago Police officer.49 Toledo—a child by any measure—was shot and killed moments after raising his hands in compliance with the officer’s commands.50
True enough, there’s no evidence that military transfers from the 1033 program were themselves responsible for either killing. But ending the 1033 program is an important step towards the reduction of police shootings of unarmed men of color for at least two reasons. First, the warrior culture of local police departments is an important barrier to reform, and the active transfer of military equipment to police departments only exacerbates the issue.51 Second, large-scale protests are a predictable response to these killings. Equally predictable are the highly militarized responses by local police departments. But when officers of the State are geared for war and fitted in battle armor, they allow for a certain disassociation, a certain dehumanization. This, then, perhaps provokes, or at least invites, violence by the officers against the gathered citizenry—and by the gathered citizenry against the officers hidden behind their regalia. It may be that wearing armor on American streets is necessary to protect against bottles and rocks lobbed by protestors; but what if that very armor also creates the conditions wherein a rock can be lobbed? Demilitarizing our police forces, including by ending the 1033 program, is a necessary step if we are to break predictable cycles of killing–protest–suppressive response.
We have come to expect—demand, really—that traumatized communities thrust into our streets by State-sponsored violence will adhere to the tenets of nonviolence developed in the 1960s during the civil rights movements of the United States and India. But of course, nonviolence is a misnomer. Nonviolent protestors are frequently met with extreme violence by agents of the State. John Lewis knew this well. Dr. King knew this well. The Student Nonviolent Coordinating Committee knew this well. And so, they trained themselves to endure unimaginable degradation. They sustained violence against their bodies without retaliation. But we should not require such self-restraint by persons voicing their resistance to their own oppression. Rather, we should require self-restraint by the officers of the State, trained, equipped, and empowered as they are.
The ethic, the value of nonviolence ought to be instantiated in the halls of power. It ought to be established as a guiding light for those members of our society tasked with wielding the coercive power of the State. There is an inherent irony here. Nevertheless, we must demand more, for, of course, the laws we enforce and the manner in which we enforce them are a reflection of ourselves. Too often, there is no time for grieving communities to organize and reflect on the principles of nonviolence that animated civil rights movements of decades past. But there is no reason our now-violent State apparatus cannot be transformed into instruments of nonviolence. If collective trauma were met with State-sanctioned care instead of force, we would find ourselves in a more just society.
President Biden’s tenure in office is likely to be marked by police killings of unarmed men of color followed by protest movements, which in turn are followed by militarized suppression of citizens in the streets.52 It is likely because police kill, on average, about 1,000 people per year.53 And when there is nearly no accountability for officers who kill unarmed civilians,54 loud public dissent is inevitable and warranted. The cycle of killing–protest–crushing response is predictable, escalatory, and ultimately untenable. We need a better way forward. That better way is for the State itself to ultimately reconceive of itself as based not primarily on the monopolistic use of force but instead on the expansion of human flourishing. Instantiating nonviolence in the apparatus of the State is imperative to this end. President Biden can begin moving our society toward this broader goal through the small step of ending the transfer of weapons of war into our neighborhoods, cities, and communities. But the goal is not merely demilitarization, it is a ubiquitous ethic of nonviolence. Such an ethic would tend to prevent the killing of unarmed citizens in the first instance. It would also tend to deescalate protest movements in the aftermath of police killings. And, of course, a foundational conception of government as expanding human flourishing would require accountability of the State to the people, particularly those at the margins.
Violence begets violence. Nonviolence begets nonviolence. For the goal of nonviolent resistance is not triumph over the other but restoration (or perhaps more accurately, formation) of the beloved community. We know that the militaristic response of our local and federal governments has not won over the very communities whose perception of legitimacy is necessary to good governance. Instead, the State should take a page from its most patriotic citizens—those who have called the United States to live up to its promises—and embrace nonviolence as a core ethic guiding its response to domestic racial crises. Then, and perhaps only then, can true human flourishing be realized.
a. J.D. Candidate 2021, University of Illinois College of Law; Managing Articles Editor, University of Illinois Law Review, 2020. My sincerest thanks to the incredibly talented editors at the University of Illinois Law Review. Your wisdom, dedication, and talent continually inspire me. Special thanks to Katelyn Dwyer, Kat Walton, and Charles Harris III for their thoughtful input and incisive editorial advice. May we walk this journey toward greater justice together and leave the law a little better than we found it.
1. Dr. Martin Luther King Jr., Nonviolence and Racial Justice, Martin Luther King, Jr. Papers Project (Feb. 6, 1957), http://okra.stanford.edu/transcription/document_images/Vol04Scans/118_6-Feb-1957_Nonviolence%20and%20Racial%20Justice.pdf [https://perma.cc/RY49-HBHZ].
2. John W. Fountain, Commentary, A Modern-Day Lynching in Minneapolis, Chi. Sun Times (June 5, 2020, 5:00 PM), https://chicago.suntimes.com/columnists/2020/6/5/21282034/george-floyd-killing-lynching-racism-police-brutality-derek-chauvin-john-fountain [https://perma.cc/4F4V-XZR6].
3. Nicholas Bogel-Burroughs, 8 Minutes, 46 Seconds Became a Symbol in George Floyd’s Death. The Exact Time Is Less Clear, N.Y. Times (June 20, 2020), https://www.nytimes.com/2020/06/18/us/george-floyd-timing.html [https://perma.cc/68CB-5V8L].
4. George Floyd Death: Violence Erupts on Sixth Day of Protests, BBC News (June 1, 2020), https://www.bbc.com/news/world-us-canada-52872401 [https://perma.cc/85F9-N8EM].
5. Doha Madani, 3 More Minneapolis Officers Charged in George Floyd Death, Derek Chauvin Charges Elevated, NBC News (June 3, 2020, 2:25 PM), https://www.nbcnews.com/news/us-news/3-more-minneapolis-officers-charged-george-floyd-death-derek-chauvin-n1222796 [https://perma.cc/3KQS-42Y7].
6. Hennepin County Medical Examiner Declares George Floyd Death Homicide, Fox9 KMSP (June 6, 2020), https://www.fox9.com/news/hennepin-county-medical-examiner-declares-george-floyd-death-homicide [https://perma.cc/FQZ2-Z848].
7. Complaint at 3, State of Minnesota v. Derek Chauvin, 2020 WL 2952878 (Minn. Dist. Ct. May 29, 2020) (No. 27-CR-20-12646).
9. Joe Wilkes, The Boot on My Neck, New Am. (Dec. 5, 2019), https://www.newamerica.org/weekly/boot-my-neck/ [https://perma.cc/R2ME-KA24].
10. Lara Putnam, Erica Chenoweth, & Jeremy Pressman, The Floyd Protests Are the Broadest in U.S. History – and Are Spreading to White, Small-Town America, Wash. Post (June 6, 2020, 1:10 AM), https://www.washingtonpost.com/politics/2020/06/06/floyd-protests-are-broadest-us-history-are-spreading-white-small-town-america/ [https://perma.cc/C6SG-773Y].
13. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/5966-JYBH].
15. Id.; Amy Harmon & Sabrina Tavernise, One Big Difference About George Floyd Protests: Many White Faces, N.Y. Times (June 17, 2020), https://www.nytimes.com/2020/06/12/us/george-floyd-white-protesters.html [https://perma.cc/PER9-3C6K].
16. Ezra Klein, Why Ta-Nehisi Coates Is Hopeful, Vox Media (June 5, 2020, 2:13 PM), https://www.vox.com/2020/6/5/21279530/ta-nehisi-coates-ezra-klein-show-george-floyd-police-brutality-trump-biden [https://perma.cc/NQB9-75BZ].
17. Maureen Groppe & Kristine Phillips, From Coastal Cities to Rural Towns, Breadth of George Floyd Protests – Most Peaceful – Captured by Data, USA Today (June 10, 2020, 4:41 PM), https://www.usatoday.com/story/news/politics/2020/06/10/george-floyd-black-lives-matter-police-protests-widespread-peaceful/5325737002/ [https://perma.cc/XCW8-QZN9].
18. George Floyd Death: Widespread Unrest as Curfews Defied Across US, BBC News (May 31, 2020), https://www.bbc.com/news/world-us-canada-52865206 [https://perma.cc/HZM5-DGQN].
19. Li Zhou, “The Protestors Had to Deescalate the Police”: Demonstrators Are the Ones Defusing Violence at Protests, Vox (June 12, 2020, 7:50 AM), https://www.vox.com/2020/6/12/21279619/protesters-police-violence-philadelphia-los-angeles-washington-dc [https://perma.cc/X735-SQ6V].
21. Shaila Dewan & Mike Baker, Facing Protests Over Use of Force, Police Respond with More Force, N.Y. Times (June 2, 2020), https://www.nytimes.com/2020/05/31/us/police-tactics-floyd-protests.html [https://perma.cc/7QRH-VFCE].
22. Harmeet Kaur, The Military Is Banned from Using Tear Gas on the Battlefield, but Police Can Use It on Crowds at Home. Here’s Why, CNN (June 8, 2020, 5:18 PM), https://www.cnn.com/2020/06/08/us/military-tear-gas-protesters-trnd/index.html [https://perma.cc/9W3V-XTCU].
23. Rachel Treisman, Protestor Knocked Down by Buffalo Police Leaves the Hospital Nearly One Month Later, NPR (June 30, 2020, 8:05 PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/30/885780550/protester-knocked-down-by-buffalo-police-leaves-the-hospital-nearly-one-month-la [https://perma.cc/3GKR-5AJA].
24. Jordan Freiman, 6 Atlanta Police Officers Charged After Video Captured Arrest of 2 College Students, CBS News (June 3, 2020, 6:22 AM), https://www.cbsnews.com/news/atlanta-police-officers-charged-excessive-force-assaulting-college-students-protest/ [https://perma.cc/GJG2-X7CR].
25. Marc Tracy & Rachel Abrams, Police Target Journalists as Trump Blames ‘Lamestream Media’ for Protests, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/01/business/media/reporters-protests-george-floyd.html [https://perma.cc/DQB5-TMC8]; Katelyn Burns, Police Targeted Journalists Covering the George Floyd Protests, Vox (May 31, 2020, 1:10 PM), https://www.vox.com/identities/2020/5/31/21276013/police-targeted-journalists-covering-george-floyd-protests [https://perma.cc/H38C-2B8V]; Trevor Timm, We Crunched the Numbers: Police – Not Protestors – Are Overwhelmingly Responsible for Attacking Journalists, Intercept: Voices (June 4, 2020, 3:00 PM), https://theintercept.com/2020/06/04/journalists-attacked-police-george-floyd-protests/ [https://perma.cc/738Q-E9BM]; Police Targeting NLG Legal Observers at Black Lives Matter Protests, Nat’l Lawyers Guild (June 7, 2020), https://www.nlg.org/police-targeting-nlg-legal-observers-at-black-lives-matter-protests/ [https://perma.cc/Z2XC-ZJS7]; Jonathan Pedneault, Police Targeting ‘Street Medics’ at US Protests, Human Rights Watch (June 17, 2020, 4:32 PM), https://www.hrw.org/news/2020/06/17/police-targeting-street-medics-us-protests [https://perma.cc/D2AS-ZDDK].
26. Jordan Smith, Police Attacks on Protestors with “Less than Lethal” Weapons Result in Life-Threatening Injuries, Intercept (June 11, 2020, 9:57 AM), https://theintercept.com/2020/06/11/police-less-than-lethal-weapons-protests/ [https://perma.cc/AV7Q-FDSS].
27. Jen Kirby, The “Kettling” of Protestors, Explained, Vox (June 6, 2020, 5:30 PM), https://www.vox.com/2020/6/6/21282509/george-floyd-protests-kettling-new-york-nypd [https://perma.cc/JE37-ATZH]; Wyatte Grantham-Phillips, Tyler J. Davis & Nick Coltrain, What Is Kettling? Here’s a Look into the Usage and History of the Controversial Police Tactic, USA Today (June 25, 2020, 1:57 PM), https://www.usatoday.com/story/news/nation/2020/06/24/kettling-controversial-police-tactic-black-lives-matter-protests/3248681001/ [https://perma.cc/ADN6-MBET].
28. Bill Chappell, ‘He Did Not Pray’: Fallout Grows from Trump’s Photo-Op at St. John’s Church, NPR (June 2, 2020, 10:29 AM), https://www.npr.org/2020/06/02/867705160/he-did-not-pray-fallout-grows-from-trump-s-photo-op-at-st-john-s-church [https://perma.cc/VE43-UAWA].
29. Philip V. McHarris, Why Does the Minneapolis Police Department Look Like a Military Unit?, Wash. Post (May 28, 2020, 5:00 AM), https://www.washingtonpost.com/outlook/2020/05/28/explaining-militarized-police-response-protesters-after-killing-george-floyd/ [https://perma.cc/4MBW-NRY5]; Steve Bynum, George Floyd Protests: A History of America’s Militarized Police, WBEZ Chi (June 11, 5:00 AM), https://www.wbez.org/stories/george-floyd-protests-a-history-of-americas-militarized-police/e5f8b170-e034-4ff2-8361-bc0558c2919d [https://perma.cc/KM6C-UZU8]; Terry Gross, Militarization of Police Means U.S. Protestors Face Weapons Designed for War, NPR: Fresh Air (July 1, 2020, 1:42 PM), https://www.npr.org/2020/07/01/885942130/militarization-of-police-means-u-s-protesters-face-weapons-designed-for-war [https://perma.cc/R3PV-K8PT].
30. Erin Donaghue, Ex-Cop Derek Chauvin Convicted of All Charges in George Floyd’s Death, CBS News (Apr. 21, 2021, 6:44 AM), https://www.cbsnews.com/live-updates/derek-chauvin-trial-george-floyd-death-guilty-three-counts-4-20-21/ [https://perma.cc/MG7G-YF2M]. Absent the massive protest movement, which was sparked by a viral video, it is unlikely that Chauvin ever would have been prosecuted. The Minneapolis Police Department’s first public statement on the killing was entitled “Man Dies After Medical Incident During Police Interaction” and claimed that “Officers were able to get the suspect into handcuffs and noted he appeared to be suffering medical distress.” John Elder, Investigative Update on Critical Incident, Minneapolis Police (May 26, 2020), https://web.archive.org/web/20200526183652/https://www.insidempd.com/2020/05/26/man-dies-after-medical-incident-during-police-interaction/. That the “medical distress” was caused by Chauvin murdering Floyd apparently was not worth a mention.
31. Alex Horton, ‘It’s Not Good for Our Democracy’: Calls Grow for Federal Officers to Shed Camouflage, Wash. Post (July 22, 2020, 6:00 AM), https://www.washingtonpost.com/national-security/2020/07/22/cbp-military-camouflage-uniforms/ [https://perma.cc/G8KX-D3WW].
32. Max Weber, Politics as a Vocation, in From Max Weber: Essays in Sociology 77–128 (H.H. Gerth & C. Wright Mills, trans., 1946).
33. Id. at 77.
35. Ezra Klein, Imagining the Nonviolent State, Vox (June 17, 2020, 7:00 AM), https://www.vox.com/2020/6/17/21279950/nonviolence-king-gandhi-protesters-rioters-george-floyd [https://perma.cc/EC7U-UQ3L].
36. Zephyr Teachout, The Problem of Monopolies & Corporate Public Corruption, 2018 J. Am. Academy Arts & Sci. 111, 112 (2018).
37. Brian Schwartz, George Floyd Protests Created a Surge in Voter Registrations, Groups Say, CNBC (June 5, 2020, 8:24 AM), https://www.cnbc.com/2020/06/05/george-floyd-protests-created-surge-in-voter-registrations-groups-say.html [https://perma.cc/TT9U-BUWT].
38. James M. Lindsay, The 2020 Election by the Numbers, Council on Foreign Relations (Dec. 25, 2020, 5:00 PM), https://www.cfr.org/blog/2020-election-numbers [https://perma.cc/X2EG-K8B4].
39. EO 13985: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, 86 Fed. Reg. 7009 (Jan. 20, 2021).
40. Remarks by President Biden on the Verdict in the Derek Chauvin Trial for the Death of George Floyd, White House (Apr. 20, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/20/remarks-by-president-biden-on-the-verdict-in-the-derek-chauvin-trial-for-the-death-of-george-floyd/ [https://perma.cc/CB83-JV3D].
44. 10 U.S.C. § 2576(a)
45. Ryan Welch & Jack Mewhirter, Does Military Equipment Lead Police Officers to Be More Violent? We Did the Research. Wash. Post (June 30, 2017, 4:00 AM), https://www.washingtonpost.com/news/monkey-cage/wp/2017/06/30/does-military-equipment-lead-police-officers-to-be-more-violent-we-did-the-research/ [https://perma.cc/XAN2-LUND].
46. Id.; Frank Edwards, Hedwig Lee & Michael Esposito, Risk of Being Killed by Police Use of Force in the United States by Age, Race-Ethnicity, and Sex, 116 PNAS 16793, 16793 (2019).
47. See, e.g., Demilitarization, Campaign Zero, https://www.joincampaignzero.org/demilitarization (last visited Apr. 19, 2021) [https://perma.cc/W6LD-6CEP]; Rebecca Kheel, House Democrats Push Biden to Limit Transfer of Military-Grade Gear to Police, Hill (Apr. 6, 2021, 12:27 PM), https://thehill.com/policy/defense/546682-house-democrats-push-biden-to-limit-transfer-of-military-grade-gear-to-police [https://perma.cc/5RHC-2LGT].
48. What to Know About the Death of Daunte Wright, N.Y. Times (Apr. 15, 2021), https://www.nytimes.com/article/daunte-wright-death-minnesota.html [https://perma.cc/J7YT-BCLB].
49. Noel King, Attorney for Adam Toledo’s Family: ‘Adam Died Because He Complied’, NPR: WBEZ Chi. (Apr. 19, 2021).
51. Seth Stoughton, Law Enforcement’s “Warrior” Problem, 128 Harv. L. Rev. F. 225 (2015).
52. In fact, between January 20 and April 18, 2021, police killed at least 264 people during President Biden’s first months in office. There Have Only Been 3 Days in 2021 Where Police Did Not Kill Someone, Mapping Police Violence, https://mappingpoliceviolence.org (last visited Apr. 20, 2021) [https://perma.cc/PQL5-DD9Q].
53. Julie Tate, Jennifer Jenkins & Steven Rich, 985 People Have Been Shot and Killed by Police in the Past Year, Wash. Post (Apr. 26, 2021), https://www.washingtonpost.com/graphics/investigations/police-shootings-database/ [https://perma.cc/F3LC-C2FP].
54. German Lopez, Police Officers Are Prosecuted for Murder in Less Than 2 Percent of Fatal Shootings, Vox (Apr. 2, 2021, 11:30 AM), https://www.vox.com/21497089/derek-chauvin-george-floyd-trial-police-prosecutions-black-lives-matter [https://perma.cc/G5MF-YN62].
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