Pandemic Policing

• Jurisdiction: United States,Federal
• Citation: Vol. 37 No. 4
• Publication year: 2021
• topic: Civil Rights,Criminal Law

Pandemic Policing

Christian Sundquist
University of Pittsburgh School of Law, CBS56@pitt.edu

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PANDEMIC POLICING

Christian Sundquist^*

CONTENTS

Introduction..............................................................................1340

I. The Cycle of Pandemic Racism..........................................1348

A. Economic Crises...............................................................1348
B. Immigration Crises...........................................................1349
C. Crime Crises.....................................................................1350

II. Pandemic Policing...............................................................1353

Conclusion.................................................................................1359

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Introduction

Please don't shoot me, Mr. Officer. Please, don't shoot me, man. Please. Can you not shoot me, man? I didn't do nothing wrong man. I'll do anything, I'll do anything y'all tell me to man. I'm not resisting man. I can't breathe Mr. Officer! Please! Please! I know I can't breathe. I can't breathe. Let go of me man, I can't breathe. I can't breathe. I can't fucking breathe man. I can't fucking breathe. I can't breathe. I can't breathe. I can't breathe. I can't breathe. Mama, mama, mama, mama. Mama, mama, mama. Mama, mama, mama. Mom, I love you. Tell my kids I love them. I'm dead. I can't breathe . . . I can't breathe . . . I can't breathe. I can't breathe. I can't breathe. I can't breathe. I'll probably just die this way. They going to kill me. They're going to kill me. I can't breathe. I can't breathe. Please, sir. Please. Please.¹

The last words of George Floyd.

I can't breathe! My name is Elijah McClain! That's all I was doing, I was just going home! I'm just different! That's all! That's all I was doing! I'm so sorry. I have no gun. I don't do that stuff. I don't do any fighting. Why would you taser me? I don't do drugs. I don't even kill flies! I don't eat meat. But I'm not a vegetarian. I don't judge people or anything. I try to live in secret . . . Forgive me! All I was trying to do was become better. But I will do it. I will do it. Even if I have to sacrifice my ID, I'll do it! You all are phenomenal. You are beautiful and I love you. You can try and forgive me. Officer, I'm a Pisces sun and a moon Gemini. Stop, stop! I'm so sorry. That really hurts!

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Dreamwork makes the team work . . . (crying) . . . It hurts so much! Yeah, I'm sorry. I wasn't trying to do that. I just can't breathe directly . . . ."²

The last words of Elijah McClain.

You are Black. You are my grandson. I don't care if your dad is white or that you are light skinned, you're still Black and you still live in this Black neighborhood. So when you come across a police officer, you have to act a certain way. You have to be respectful. Don't talk back to the officer or raise your voice. Do whatever they tell you to do. Because some of these police might see you as a threat just because of where you are from.

The "Talk" as given to the author by his Black grandfather.³

I was born into racial crisis. My parents—a Black woman from a segregated African-American neighborhood in Chicago and a White man from a Swedish immigrant enclave—believed they could change the world through free love, nonviolence, and racially blended communities. It was in this utopian dream of a better world when my mother began to have contractions on a cold, wintery night at their commune near the rural fields of Southern Illinois. The car they hoped to drive to the closest country hospital—a rusted, old pick-up truck shared by all commune members—broke down on the night of my eventual birth in the middle of the muddy road leading to the main highway. My parents desperately went from house to house for help, asking only to use a telephone or perhaps for a ride to the hospital. And yet they were turned away by these (White) families time and time again—the hatred of my mother's Blackness (and my impending Blackness) plainly evident. My parents' utopian hopes for

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racial equality were dashed in that moment of imminent crisis as they were confronted once again with the dystopian reality of enduring racism. Though a family friend eventually noticed them walking on the snowy dirt road and took them to the hospital (where i was born just hours later), this personal story of genesis illustrates how crises can activate racially discriminatory responses.

As our world continues to face multiple crises—from the COVID-19 pandemic and climate change to famines and war—we must recognize that our historical and continuing reaction to crisis has been to demonize those at the margins of our societies while adopting social and legal measures that normalize racial inequality. We need to finally admit, in other words, that we have long suffered from a pandemic of racism born from social oppression and facilitated by public crises. The police killings of George Floyd, Breonna Taylor, Ahmaud Arbery, and too many others have briefly lifted the veil on America's legacy of racial violence, sparking protests for racial justice and calls for criminal justice reform.

George Floyd. Breonna Taylor. Ahmaud Arbery. Tamir Rice. Eric Garner. Walter Scott. Amadou Diallo. Trayvon Martin. Sandra Bland. Philando Castile. Stephon Clark. Laquan McDonald. Michael Brown. Atatiana Jefferson. John Crawford III. Alton Sterling. Elijah McClain.

We have been here before. Our past is our present, and our present has always been our future. Our history is full of the bodies of Black men, women, and children killed for no other reason than their Blackness by the "moral monsters" of racial violence, awoken by real or perceived social crises.⁴ Say their names. Say the names of the small children that dared to dream of a future. Say the names of the mothers and fathers that struggled to overcome racial discrimination to provide a home for their families. Say the names of the community

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activists that paid with their lives fighting for freedom. Say the lost names of the buried ghosts of our slavery past, of our lost ancestral histories, and of the tens of millions of people that perished in the name of hatred and avarice.

Yusuf Hawkins. Freddie Gray. Oscar Grant. Ezell Ford. Terence Crutcher. Akai Gurley. Clementa Pinkney. Cynthia Marie Graham Hurd. Susie Jackson. Ethel Lee Lance. Depayne Middleton-Doctor. Tywanza Sanders. Daniel L. Simmons. Sharonda Coleman-Singleton. Myra Thompson. Tanisha Anderson. Jamar Clark. Botham Jean. Natasha McKenna. Bettie Jones. Eric Reason. Dominique Clayton. Michelle Cusseaux. Dante Parker. Calin Roquemore. David Joseph. Antwon Rose II. Michael Lorenzo Dean. Quintonio LeGrier. Christian Taylor. Felix Kumi. Michael Sabbie. George Mann. Jerame Reid. Tony Robinson. Tony McDade. Willie Tillman. Aaron Bailey. Paul O'Neal. Sylville Smith. Christopher Davis. Wendell Celestine. Keith Childress, Jr. Michael Lee Marshall. Miguel Espinal. Tyree Crawford. Darrius Stewart. Phillip White. Erica Harris. Mya Hall. Frank Smart. Rumain Brisbon. Brendon Glenn. Alexia Christian. Salvado Ellswood. Billy Ray Davis. Samuel Dubose. Jordan Edwards. Alteria Woods. Albert Joseph Davis. Matthew Ajibade. Natasha McKenna. Anthony Hill. India Kager. David Joseph. La'vante Biggs. Kevin Matthews. Marco Loud. Peter Gaines. Darius Robinson. Benni Lee Tignor. Lamontez Jones. Asshams Pharoah Manely. Brian Keith Day. William Chapman II. Jonathan Sanders. Junior Prosper. Janet Wilson. Demarcus Semer. Mary Tuxillo. Wendell Celestine. Christopher McCorvey. Eric Reason. Pamela Turner. Paterson Brown. Richard Perkins. Anthony Ashford. Victor Manuel Larosa. Brian Keith Day. Dominic Hutchinson. Benni Lee Tignor. Michael Noel. Christopher Whitfield. Randy Nelson. Nathaniel Harris Pickett. Dyzhawn Perkins. Terrill

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Thomas. Keith Harrison McLeod. Salvado Ellswood. Anthony Ashford. Addie Mae Collins. Cynthia Wesley. Carole Robertson. Carol Denise McNair. Rev. George Lee. John Earl Reese. Samuel Ephesians Hammond, Jr. Delano Herman Middleton. Henry Ezekial Smith. Benjamin Brown. Wharlest Jackson. Clarence Triggs. Ben Chester White. Vernon Ferdinand Dahmer. Samuel Leamon Young, Jr. Willie Brewster. Oneal Moore. Jimmie Lee Jackson. Lt. Col. Lemuel Penn. James Earl Chaney. Henry Hezekiah Dee. Charles Eddie Moore. Louis Allen. Virgil Lamar Ware. Medgar Evers. Cpl. Roman Ducksworth, Jr. Herbert Lee. Mack Charles Parker. Willie Edwards, Jr. John Earl Reese. Lamar Smith. Rev. George Lee. Emmet Louis Till. Dr. Martin Luther King, Jr.⁵

And yet, perhaps our future does not need to be our present. Perhaps we are living in a moment in time when the permanence of racism can be disrupted, when we can find hope and "salvation—through struggle."⁶ Perhaps, at least, we can finally break the cycle of pandemic racism by critically engaging the racialized responses we have to public crises while disassembling the legal structures that normalize racial inequality.

This is, nonetheless, not an article of post-racial hope but of finding the moral solace in struggle and liberation in the face of crisis. This Article examines the ways in which public crises have contributed to a global pandemic of racism while identifying legal and policy interventions to disrupt discriminatory social responses. In so doing, it develops the novel concept of "pandemic racism" as encompassing the structural systems, institutions, and social norms that operate in response to public crises to normalize and reinforce racial inequality.

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We continue to struggle with dual existential threats to humanity—the COVID-19 pandemic and endemic racism.⁷ The COVID-19 pandemic has unmasked the latent inequalities in our societies while, at the same time, exacerbating racial disparities in health, education, immigration, and criminal justice.⁸ And yet the tools deployed to control the COVID-19 pandemic—such as contact tracing, biosurveillance, quarantines...