AuthorNichols, Yazmine C'Bona Levonna

Introduction 154 I. Anti-Blackness and White Supremacy as Context 159 A. Definitions 159 B. Anecdotes: Exclusion Resulting in Black Geographical 160 Confinement II. The Legal Construction of White Space as Protected Space 162 A. The Slave Codes and the Black Codes 162 B. Jim and Jane Crow 163 C. Post-Jim and Jane Crow 165 III. The Theological Construction of White Bodies 168 A. Interrogating Whiteness as Theological Power 169 B. Interrogating Whiteness as Sacred Identity 170 IV. The Inefficacy of Current New York State False Reporting 173 Statutes and Hate Crime Statutes A. The Legal Harm or Injury 173 B. New York State False Reporting Statute 175 C. New York State Hate Crime Statute 179 V. A New, Interdisciplinary Approach 182 A. Senator Hamilton's Hate Crime Bill 182 B. Insights: Theology, Tort Law, Criminal Law, and Critical 183 Legal Theory C. The Remedy 184 D. The Role of Enforcing Agencies 190 Conclusion 193 INTRODUCTION

In the past few years, viral videos and commentaries have shed light on a long-existing but previously under-recorded problem--frivolous race-based police calls. For example, in Philadelphia, police arrested two Black men, Donte Robinson and Rashon Nelson, in a Starbucks after a White manager called 911 because the men did not order anything immediately upon entering the establishment. (1) In Oakland, a White woman called the police on a Black family barbecuing. (2) In a different incident in San Francisco, a White woman called the police on a Black mother and her eight-year-old child because the two were selling water outside, apparently without a permit. (3) Another White woman physically assaulted a fifteen-year-old Black boy and threatened to call the police on him at a local pool in South Carolina. (4)

In addition to these alarming events, a White student called the police on a Black Yale student, Lolade Siyonbola, for sleeping in a Yale University common room. (5) A DoubleTree Hotel in Portland decided to fire two White workers who called the police on Jermaine Massey, a Black man who was a guest at the hotel. (6) And, more recently, a White woman called the police on a Black man, Devin Myers, claiming that he looked at her "suspiciously." (7) In a more proximate incident in New York City, a White woman called the police on Jesse Hamilton, a Democratic state senator campaigning in Brooklyn. (8) Explaining the reason for her call, the woman stated--"I support Trump, and I see the difference between Democrat and Republican--and I see the difference between you and Trump...." (9) She then censured Hamilton for giving out pamphlets and "fighting back" against Trump. (10)

These occurrences, which this Note terms "frivolous race-based police calls" (FRBPCs), have a long history within the United States, and comport with Katheryn Russell-Brown's notion of the "racial hoax." (11) Racial hoaxes occur "[w]hen someone fabricates a crime and blames it on another person because of his race or when an actual crime has been committed and the perpetrator falsely blames someone because of his race." (12) Russell-Brown argues that White-on-Black racial hoaxes are based on White people's "imaginary" inventions of Black people. (13) She notes that "[h]oax perpetrators are most frequently charged with filing a false police report," but that "the number of racial hoaxes suggests that false police report statutes do not operate as effective deterrents." (14)

Russell-Brown locates the genesis of racial hoaxes within the external and internal images that the media creates through a fictionalized reality about Black people. (15) She points out that, on the one hand, "Blacks are regularly portrayed as lawyers, doctors, nurses, police officers, and best friends." (16) On the other hand, several trends have emerged other trends that "revert to crude one-dimensional images of Blackness." (17) Russell-Brown notes--as images of fictionalized Black deviancy--talk shows that portray Black people as amoral buffoons; sitcoms that portray the "comical relief" caricature of Black manhood; "reality" police television programs that showcase Black criminals; and the news. (18) Russell-Brown analyzes more than 100 racial-hoax cases beginning in 1987, identifying stark disparities among hoax perpetrators. (19) Approximately two-thirds of hoax perpetrators are White, she writes. (20) She also points out that "[p]eople carry out racial hoaxes for all sorts of reasons--serious, mundane, or even silly." (21) For this Note's purposes, it is important to take note of the racial disparities that Russell-Brown highlights and to limit the scope of analysis to White-on-Black FRBPCs.

In line with Russell-Brown's analysis, this Note takes seriously the cultural and social mechanisms by which Blackness is converted into a symbol of deviance and criminality. This Note also considers the structural legal mechanisms by which Black people are policed as deviant and criminal. However, this Note departs from Russell-Brown by positing that, unlike racial hoaxes, frivolous race-based police calls do not always require: (1) fabricating a crime; or (2) falsely blaming an actual crime on someone else because of the person's race. (22) Instead, this Note asserts that FRBPCs occur simply when a person calls the police on an individual because of that individual's real or perceived racial identity, when said individual is engaged in quotidian activities--everyday tasks such as sleeping, walking, and playing in the park--that, under most circumstances, would not be considered criminal. (23)

It is also worth highlighting that this Note's focus is distinct from the recent, and now-infamous, alleged racial-hoax incident involving Hollywood celebrity Jussie Smollett. (24) The Smollett incident is different because, although Smollett was accused of perpetrating a Black-on-White hoax, (25) his initial allegations referred to general, unidentified White people. White-on-Black frivolous race-based police calls, by contrast, aim to regulate the lives of specific, individual Black people. White-on-Black FRBPCs are particularly dangerous because they are rooted in acts of flagrant and subtle exclusion that ultimately relegate Black individuals to geographical confinement.

This Note posits that White supremacy and anti-Blackness function both as psycho-spiritual and structural evils. The term "structural" refers to historical and contemporaneous legal mechanisms--including statutes, ordinances, formal and informal policies, and judicial decisions--that have caused legal harm and physical loss to Black people by denying them access to full citizenship and humanity under U.S. law. The term "psycho-spiritual" refers to a particular type of theological harm that extends beyond the psychological impacts of racial stigma cited by cases such as Brown v. Board of Education. (26) The term "psycho-spiritual" encompasses the spiritual and psychological injury caused by exclusionary White theological customs, culture, and spaces, which separately and cumulatively work to deny Black people access to divinity.

In order to remediate the problem, the law must do more than challenge legalized White space. It must challenge the theological deification of White bodies. Examining the theological treatment of Whiteness as sacred helps to illuminate why FRBPCs are so difficult to address and how the deification of White bodies is embedded in America's moral and civic national identity. A theological examination also lays the groundwork for devising a civil action that addresses the psycho-spiritual component of White supremacy and anti-Blackness. Incorporating theological analysis more effectively highlights the group-based injury that Black people experience as a result of FRBPCs and can help to eradicate the imprisoning remnants of White supremacy and anti-Blackness. Additionally, crafting a legal remedy that recognizes the need for psycho-spiritual "repentance" (27) affirms Black people's humanity and their divinity, and works to divest White people of "their subjugating control over non[W]hite bodies." (28) In the event that such a law is not frequently enforced, its aspirational quality suffices as a source of empowerment for Black people, and affirms their inherent value.

Part I of this Note will discuss the longstanding history of White supremacy and anti-Blackness in the United States. Part II will discuss the legal construction of White space as protected space. Part III will discuss the theological construction of White bodies as protected bodies. Part IV will examine the efficacy of current New York State law governing false police reports and hate crimes. Part V will propose a remedy that includes theological discourse and draws on civil law principles, incorporating aspects of critical legal theory. The Note will emphasize the signaling power of the law, the need for normative policy, and the significance of White repentance and contrition. Furthermore, the Note asserts that viewing the law as aspirational (29) can serve public education purposes, address explicit and implicit biases, and has the potential to remedy omitted contexts and selective enforcement.


    Part I focuses on anti-Blackness and White supremacy in the United States. Section I.A provides meaningful definitions of the two terms. Section I.B provides helpful anecdotes of racialized exclusion that resulted in Black geographical confinement.

    A. Definitions

    In order to fully understand the meaning of frivolous race-based police calls--which often occur in spaces that are not exclusively White, but are fertile ground for White dominance--it is necessary to contextualize the calls within a larger system of White supremacy and anti-Blackness. Here, White supremacy refers to:

    [Not] the self-conscious racism of [W]hite supremacist hate groups[]... [but] instead to a political, economic and cultural system in which [W]hites overwhelmingly control power...

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