A Colony in a Nation

by Chris Hayes

  But the American colonists were subject to British invasions of their carriages, ships, and homes without the safeguards enjoyed by their English cousins. Widely used “writs of assistance” allowed British officials to invade their homes willy-nilly, as part of a broader scheme to squeeze American pocketbooks. After the Seven Years’ War, the hated writs of assistance empowered British customs officials to stop and search ships coming into New England ports.

  You can imagine how insulting and humiliating the colonists found this arrangement. As subjects of the Crown, they felt entitled to the legal rights enjoyed by their brethren across the ocean, yet the king had functionally relegated them to second-class status. British subjects in Britain experienced one set of rights; British subjects in the colonies experienced a lesser set.

  Late in his life John Adams reflected that the writs had bestowed upon any government official, no matter how lowly in the colonial order, the authority to rifle through the property of any colonist. Writs of assistance, he wrote,

  enable[d] the custom house officers . . . to command all sheriffs and constables to attend and aid them in breaking open houses, stores, shops, cellars, ships, bales, trunks, chests, casks, packages of all sorts, to search for goods, wares and merchandizes, which had been imported against the prohibitions.

  The use of the writs was oppressive and disruptive. Every policing regime must choose just how tightly to enforce a given law, either explicitly or as the logical conclusion of other decisions. When citizens come to expect and understand a certain level of enforcement, they tailor their behavior accordingly. I have a keen sense that if I park in any of the various illegal spaces in my neighborhood, I’ll probably get a ticket, and when I do, I understand it as the cost of the illegal action that I knowingly took. But if you’re looking to make a community furious, then arbitrarily fiddle with enforcement norms, and see what happens.

  As an example, imagine if suddenly the Cambridge, Massachusetts, authorities were to import the law enforcement approach used in central Harlem to police Harvard University. A massive police presence would be visible on every quad and in front of every dorm. Cops would stop and frisk students on their way to class; they would search the swank homes of parents of students caught with drugs; and they would monitor social media accounts to bust drug deals. The student body and their very powerful parents would revolt.

  In the American colonies, the backlash was intense and only grew more so as British authorities—finding their efforts sabotaged and evaded—responded with ever more force.

  At first the smugglers and their allies in the revolutionary hotbeds of New England port towns like Newport and Boston mounted legal challenges. James Otis, Jr., a Harvard-trained Boston lawyer and charismatic orator, rose to prominence as the chosen advocate of the smuggler class. He had been a lawyer for the colonial administration, initially called upon to defend the writs of assistance, but rather than do so, he resigned his post. In 1761, representing merchants pro bono, Otis appeared before the Superior Court of Massachusetts to argue against the British use of writs of assistance, calling them the “worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book,” and “a power that places the liberty of every man in the hands of every petty officer.”

  His argument would stretch to five hours. John Adams, who was among those who’d packed into the courthouse to hear Otis, would later say:

  Every man of an immense crowded audience appeared to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary rule of Great Britain. Then and there the child Independence was born.

  Opposition to the crackdown wasn’t limited to the courts: petitions and pamphlets tumbled forth with ever-mounting indignation and fury. Mob violence was a central feature of the burgeoning revolutionary movement. Customs officials found themselves surrounded, jeered at, and harassed as they attempted to execute their official duties. Often mobs would simply steal back the confiscated contraband. Not surprisingly, the British did not take kindly to this behavior. They responded by doing everything short of declaring formal war on smugglers and on everyone who supported them.

  The problem that King George III faced would bedevil authorities for centuries, from the revenuers of Prohibition to the modern Drug Enforcement Administration: when the state declares some popular good illicit, a good that enjoys widespread normalized usage, the state must pursue ever more draconian means to snuff it out.

  As customs officials were granted more and more power to extinguish illicit trade, inevitably they began to abuse it. Often they actually made their money as a percentage of the value of the goods they confiscated, putting them in the same position as pirates, but with the entire force of the British Crown behind them. (It’s not so different from today’s police departments funding their budgets through civil forfeiture.) Abuse and corruption were widespread, and as enforcement ratcheted up, so did colonial hatred of the men doing the enforcing.

  When extra customs officials proved insufficient to the task, the British authorities called in the navy. Now military vessels and sailors boarded and searched ships suspected of smuggling. The spectacle of this militarized policing enraged the colonists. Ben Franklin, with biting sarcasm, attacked the folly of turning the tools of war-making on civilians:

  Convert the brave, honest officers of your navy into pimping tide-waiters and colony officers of the customs. Let those who in the time of war fought gallantly in defense of their countrymen, in peace be taught to prey upon it. Let them . . . scour with armed boats every bay, harbor, river, creek, cove, or nook throughout your colonies; stop and detain every coaster, every wood-boat, every fisherman. . . . Thus shall the trade of your colonists suffer more from their friends in time of peace, than it did from their enemies in war. . . . O, this will work admirably!

  Animus built toward the most famous incident of the pre-Revolutionary period, the Boston Tea Party. Like the bromides about taxation and representation, the Boston Tea Party doesn’t actually make sense today without understanding the context of enforcement. The cargo dumped from aboard several ships of the British East India Company was legal tea. Contrary to what you may have learned, this tea was relatively cheap for consumers to purchase, even after including the price of the import tariff. The Crown had granted the East India Company sole monopoly of the import of this tea, making it the single legal competitor to the vast armada of smugglers of illegal Dutch tea that flooded the colonies. And in fact, what so enraged the revolutionary mob that defiled this shipment was that the Crown had recently lowered the import tariff on this legal tea, making it more economically competitive with smuggled tea. In other words, the Tea Party was triggered not by taxes being raised but rather by a tax cut. Our common understanding of the tea party as a revolt against taxes renders this basic truth invisible, but the event only makes sense in the broader context of an enforcement regime whose abuses and excesses had destroyed the government’s legitimacy.

  Escalating conflict between smugglers and the officers who policed smuggling was one of the chief drivers—perhaps the chief driver—toward the outbreak of violent insurgency that led to the country’s founding. It was the point of the spear, where the inherent contradictions of colonial rule were made most acutely, painfully, and sometimes violently manifest. When the colonial insurrectionists railed against the king, it was his customs officers who embodied his tyranny. And sure enough, in the Declaration of Independence, in the list of petty indignities and offensive tyrannies of the Crown, we find an excoriation of the king for the fact the he has “sent hither swarms of officers to harass our people and eat out their substance.”

  SO WHAT DOES ALL of this have to do with Ferguson, Missouri? When you zoom out past the precipitating incident of Michael Brown’s death and look at the Ferguson police as a whole, you find an enforcement regime strikingly similar to t
he British Crown’s. The fundamental offense of British customs policing was that its driving rationale was revenue. Like the customs officers who interdicted smugglers to bring in tariffs, the police in Ferguson were ordered to write tickets to bring in money. That kind of law enforcement had nothing to do with public safety or welfare, and the public knew it. As the Department of Justice (DOJ) wrote in its report on the patterns and practices of the department:

  Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.

  Like the regime in the American colonies, the enforcement regime in Ferguson had a lot to do with the lack of democratic accountability.

  Here’s a snapshot of Ferguson’s history. It was built as a railroad town, but in the 1960s, as desegregation came to St. Louis schools, whites fled north from the city proper for the inner ring suburbs of St Louis County. Ferguson is just one of a number of surrounding municipalities that took in the influx of working-class whites. For a generation, the towns in St. Louis County were, in the words of one local, “white blue-collar Democrats. Military families. Union families.”

  And then in the inexorable migratory logic of white fear, when black people started to move into those same inner ring suburbs, whites who had been living there moved out farther into the sprawling exurbs. In 1990 Ferguson was 73 percent white and 25 percent black. A decade later African Americans were a slim majority, and by the time Michael Brown was shot and killed, African Americans comprised about two-thirds of the town’s 21,000 residents. The white people who stayed had a certain pride in their own enlightenment and open-mindedness. “It’s ironic this happened in Ferguson, because Ferguson had the reputation of being one of the most progressive [towns] in north St. Louis County,” native Umar Lee told me. “Where you do have a strong contingent of white people . . . that are kind of committed to diversity, and you know, we’ve got the Ferguson farmers’ market right down the street.”

  But if they are relatively enlightened, the white citizens of Ferguson are also disproportionately empowered: despite the fact they are a minority of the municipality, they dominate its political leadership.

  In Ferguson, just about every single black person I spoke to had at least one story (often many) about humiliating traffic stops by Ferguson police officers that had nothing to do with public safety. And the statistics bear them out. In 2009, in a city of just 22,000, there were 24,000 traffic cases in the Ferguson municipal court, and by October 31, 2014, that figure had grown to 53,000. Nearly all levels of Ferguson’s municipal government had pushed for the increase. In March 2010 the city’s finance director warned the police chief, Tom Jackson, that “unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. What are your thoughts? Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.” By 2014, the year of Michael Brown’s death, tickets and citations were still increasing as rapidly as they ever had. The DOJ found evidence that black residents of Ferguson received speeding tickets “at disproportionately high rates overall” and that the Ferguson police department’s “enforcement practices on African Americans is 48% larger when citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment.”

  The model of cops as armed tax collectors didn’t stop with simple traffic stops for speeding: the entire municipal court system was designed to function like a payday lending operation. Relatively small infractions quickly turned into massive debts. Many traffic citations required the ticketed person to make court appearances, but the local court would hold sessions only three to four times a month for just a few hours. Because of the limited hours, the court couldn’t process everyone who came for their court date. Those left outside were cited for contempt for failing to appear. Not coming to court triggered another fine, and failure to pay that fine counted as its own form of contempt, adding to the total.

  Here, from the DOJ report, is one particularly enraging example of how it all works:

  We spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010. For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees. From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full. One of those payments was later accepted, but only after the court’s letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541.

  By 2015, fines and fees would make up more than one-fifth of the city of Ferguson’s total revenue. The local leadership class clearly saw tickets and citations as a convenient source of cash that would fill the city’s treasury without their having to do the politically difficult work of raising taxes. The problem with raising, say, property taxes is that the most engaged, empowered citizens will revolt against it. So instead, why not just squeeze all you can out of a smaller, less powerful group of citizens by raising the revenue through enforcement? The citizens receive municipal services, and the subjects have to pay for them. King George III succumbed to the same temptation.

  Of course, just as with the colonial customs officers, a policing regime designed to extract revenue and stamp out petty, nonviolent offenses is going to need ever-grander grants of power. The British Crown issued formal writs of assistance that allowed anyone to be searched at any time. The Ferguson police department used its expansive municipal code for the same ends. In addition to the “failure to comply” statute so abused by Ferguson cops (as I discussed earlier), cops could marshal a bevy of other municipal infractions—such as “manner of walking in roadway” violations—for their purposes.

  This meant that the black citizens of Ferguson lived in a different country than their white neighbors. They lived in a country without a Fourth Amendment, without the fundamental right to privacy, the right to be “secure” in one’s personal effects, whether in one’s body, house, or car. They lived (and continue to live) the contingent existence of the occupied. And here’s what that looks like (again, an incident recorded in the DOJ report):

  Lieutenant: Get over here. Get the f*** over here.

  Man at bus stop: Me?

  Lieutenant: Yeah, you.

  Man at bus stop: Why? What did I do?

  Lieutenant: Give me your ID.

  Man at bus stop: Why?

  Lieutenant: Stop being a smart ass and give me your ID.

  All this was the context for what happened in Ferguson after Michael Brown was killed. I’ve never been anywhere in the United States that felt as revolutionary as those days of unrest in Ferguson. And it wasn’t primarily because of the protesters or the relatively small handful of (mostly) young men looting and setting things on fire. It was because the response of the cops was so heavy-handed, so panicky. In response to the outrage that poured forth on that summer afternoon, the police of Ferguson and St. Louis County mobilized as if for war: flak jackets, masks, helmets, camouflage, assault weapons, and
armored vehicles. Men pointed their long guns at civilians who assembled for peaceful protest. Cops arrested and detained journalists who were charging their phones in a McDonald’s. They fired tear gas canisters indiscriminately. Bands of armed cops in full combat gear chased unarmed, peaceful protesters through the streets with guns raised.

  Presented with a challenge to its power, an illegitimate regime will often overreact, driven by the knowledge that all they have is force. As Frantz Fanon wrote in 1961 about French colonialism, “In the colonies, the official, legitimate agent, the spokesperson for the colonizer and the regime of oppression, is the police officer or the soldier. . . . The government’s agent uses a language of pure violence. The agent does not alleviate oppression or mask domination. He displays and demonstrates them with the clear conscience of the law enforcer, and brings violence into the homes and minds of the colonized subject.”

  On the streets of Ferguson, one could, in every moment, feel the police officers’ lack of legitimacy. There was nothing behind them; their guns provided their only authority. One threatened to Mace me on live TV because I drifted too close to him while broadcasting. And in his contorted face I could see how terrified he was.

  There was one detail of Michael Brown’s death that protesters and residents alike kept returning to, and it wasn’t the “hands up” contention. It was the body. After the shooting, Michael Brown’s body lay in the street for more than four hours: bloody, baking in the hot August sun. His brains spattered on the concrete. Police would say they needed to be diligent with their forensic investigation, but to those who assembled in the minutes after Brown’s death, the inert, uncovered, disrespected body was the perfect symbol of the Ferguson police’s contempt. One resident who was there said it felt like the kind of thing the Mafia would do after a hit—just leave the body out for all to see as a warning—“or one of those cartels down in Mexico. Don’t they do that sometimes, kill someone and just leave him out like that?”