Kung Li is currently on a three month investigatory tour focused mainly in the South to better understand how mass criminalization has impacted our belief system, how it has distorted our democracy and whether it is a cause of increasing fragmentation of our country. This post origionally appeared on Solutions Not Punishment (SNaP).
You have seen the photograph. Not a photograph, but a screenshot from a cell phone video. The trunk of an oak tree is in the foreground, splitting the picture into two sides. Behind the tree trunk, there is a sidewalk that starts at the lower right of the picture and rises slightly across to the left. Standing on this sidewalk, on the right side of the tree, is a white man in a police uniform. His arms are raised perpendicular to his body and his upper back is hunched forward in the stance of someone taking careful aim. On the left side of the tree is a black man in a green t-shirt, in motion. His left knee and elbow are cocked in the pose of a running man. His right leg is fully extended, toes pushing off the ground. This is Walter Scott, running away.
The video of Officer Michael Slager shooting and killing Walter Scott was taken by Feidin Santana, a young black man walking to work last April when he spotted two men struggling on the ground and started recording. What Feidin Santana got on camera was Officer Slager firing eight shots, Mr. Scott falling face down, Officer Slager walking up to Mr. Scott’s still body and handcuffing him, Officer Slager walking back to pick up an object (presumably his taser), then Officer Slager walking back and casually dropping the object next to Mr. Scott’s body. Afterwards, Feidin Santana was so frightened of possessing the video that he considered erasing it and getting out of Charleston.
He did not, and so we have a screenshot photograph: a black man running away, a white police officer shooting.
The French philosopher Roland Barthes in Camera Lucida (1980) describes how he lingers over photographs that disturb him, wanting to know more. One such photo is of a young man taken in 1865. The young man is in a prison cell because he tried to assassinate the Secretary of State. The photograph, Barthes writes, “is handsome, as is the boy: that is the studium. But the punctum is: he is going to die.” The philosopher shudders over a catastrophe which has already occurred. He stares at the photo, as we stare at the photo of Walter Scott running away, one or two bullets already in his back and more on the way. We scrutinize, we study. We share Barthes’ desire, to “turn the photograph over, to enter the paper’s depth, to reach its other side.”
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A conviction that is long time coming
The day I was in Charleston last week, Officer Slager was indicted on federal civil rights charges of depriving Walter Scott of his rights under color of law. That is, of using unreasonable force while acting as a police officer. These federal charges are rare, especially where, as here, the state of South Carolina has already indicted Officer Slager on state murder charges. At the state and federal trials (which will proceed simultaneously), Officer Slager’s defense attorneys will ask the jury to turn the photograph over, to look behind the damning picture of their client shooting Mr. Scott in the back. They will tell a back story of a fight, where Mr. Scott tried to grab Officer Slager’s taser. They will ask members of the jury to enter the depth of Officer Slager’s heart, to feel as he did: afraid for his life, firing his gun because he believed the fleeing man was a threat to the safety of the surrounding community.
Officer Slager’s defense attorneys will make these arguments in earnest. As they should – they have a moral obligation to provide Officer Slager a vigorous defense. The press and social media will fall in behind the line of argument and parse the case accordingly. Was the evidence sufficient? Was the prosecution aggressive? Was justice served?
It is a conversation that is a long time coming. No matter how much talk this trial and others generate, it will not be enough: in 2015 alone, Walter Scott was, along with Freddie Grey and Sandra Bland, one of 1185 people killed by police.
Let us return to the photograph, of Walter Scott running away to the left as Officer Slager to the right fires his gun. The trunk of an oak tree bisects the picture. There is a wood fence, there is grass. The sidewalk, on closer inspection, is a dirt path. There is nothing else to see no matter how closely we peer. Shall we turn the photograph over, to see what we can find on the other side?
The date and place are duly noted: April 4, 2015/North Charleston, SC.
If we see this photograph only as evidence in Officer Slager’s individual criminal case, then there is nothing else.
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Slavery didn’t end; it evolved
Attorney Bryan Stevenson is the level-headed, even-tempered author of Just Mercy (2014), and director of the Equal Justice Initiative. After thirty years in Alabama and Georgia defending people targeted by the criminal justice system, he recently made the startling declaration that slavery did not end; it evolved. This is a not a metaphor, but a matter of historical fact: there is an unbroken bureaucratic line between the convict lease system – established by every southern state to enforce the labor contracts that maintained conditions of slavery after the Civil War – and the present criminal justice system.
So in a drive around the country to better understand criminalization and our notions of justice, it seems fitting to start with slavery. I am in Charleston, South Carolina because Edward Ball in his family memoir Slaves in the Family (1998) located Charleston as “the Jerusalem of slavery, its capital and center of faith.” When I ask for help at the Visitor’s Center, the host tells me Boone Plantation’s “Black History in America” exhibit is the place to go for “that aspect of things.”
In 1743, the owner of Boone Plantation planted 88 saplings along the road leading in. This is now the Avenue of Oaks, three-quarters of a mile long:
At the end of the Avenue of Oaks, nine small brick houses in a neat row are labeled “Slave Street.” A white tour guide is giving a talk on Slave Street. The matter of running away comes up.
“Was there a fence?,” a man with an Germanic accent asks. “Or dogs?” The tour guide says no, there was no fence, and while there were dogs, they were rarely used. There was, she tells him, very little running away.
He seems incredulous but unsure how to ask the next question. I help him out, asking why the enslaved people did not leave.
“They were kept very ignorant,” the tour guide tells us.
A white woman I had been talking to earlier, from New Hampshire, speculates they were “probably too tired.”
Her husband jumps in. “These are good looking slave quarters,” he says. “Tells us something about the owner. Probably a good man.”
The husband glances at the camera in my hand. White men who think I am a tourist from China like to explain things to me, using the simplest words possible.
“They were OK here,” he says. He says “oooooh….kaaaay” slowly, so I can understand him.
The tour guide sees me grimace and realizes this should not be the final word on the matter of running away. “There was really nowhere to go,” she says.
I suggest the slave patrols had something to do with keeping people from running away, and the consequences for getting caught. Whipping, branding, maiming, that sort of thing. The tour guide smiles a perfectly blank Charleston smile and redirects our attention to the clay pan tile roofs and the rake shoulders on the chimneys.
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The slave patrol
In 1704 the colony of South Carolina passed An Act to Settle a Patroll. The purpose of this first police force was to “prevent such insurrections and mischiefs as from the great number of slaves” in the colony. In 1739, there was indeed mischief, in the form of the Stono Rebellion. Led by a man named Cato or Jemmy, enslaved men from plantations just south of Charleston (then Charles Town) marched south towards freedom in Spanish Florida, calling out “Liberty!” to recruit over a hundred runaways. They killed twenty-three white men along the way, and more in an open field battle with the local militia, before running out of ammunition. Those not killed immediately were sold off to the West Indies or hanged.
The South Carolina legislature responded at their next session with a revision of the Slave Code that, among other things, strengthened the Slave Patrol. The revision allowed patrollers to mete out harsher punishments on the spot when they caught black people – presumed to be enslaved – on the roads without passes. Their other functions were to search slave quarters and disperse gatherings.
In the city of Charleston, an ordinance in 1806 formalized the night watch into the City Guard. Like the rural Slave Patrol, the City Guard’s primary function was to keep a close eye on anyone who was not white, to keep them from organizing an uprising, or running away.
South Carolina’s Slave Patrol and Charleston’s City Guard were this area’s first organized police forces.
That Charleston’s police forces grew out of slave patrols is well documented by historians W. Marum Dulaney, Sally Hadden, and Shirley Yee. Two former presidents of the Police Foundation, Patrick Murphy and Hubert Williams, have encouraged their fellow police chiefs to acknowledge this loathsome history. One who has done so, somewhat surprisingly, is William Bratton. New York City’s controversial top cop had this to say at the Greater Allen AME Church in Queens last year during Black History Month:
“Slavery, our country’s original sin, sat on a foundation codified by laws enforced by police, by slave-catchers.”
Peter Stuyvesant’s first order of business in establishing New Amsterdam (now New York City), said Bratton, was a police force tasked with keeping enslaved people in line.
This is the police force Bratton now leads.
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The U.S. Constitution
So long as we are mucking around the sludge of our country’s original sin, let’s trudge over to the U.S. Constitution. It’s a short distance: drive back out the Avenue of Oaks (wondering how it is that the live oaks dripping with Spanish moss now call to mind “Beyoncé/Lemonade” before “slave plantation”, even here on a slave plantation) and directly across the street is the plantation of Charles Pinckney. This plantation is a National Park Service Historic Site, giving Pinckney his due as one of this country’s founding father.
Pinckney’s big contribution to the drafting of the Constitution was to insist that fugitive slaves who made it across state lines be caught and “delivered up like criminals.” Big man that he was from the bellicose state of South Carolina, Pinckney got his way. Section IV of the U.S. Constitution specifies that when a fugitive from justice is caught, they are to be returned to the state they are fleeing.
So runaways, thanks to Pinckney, were in the eyes of the freshly minted U.S. Constitution fugitives from justice.
Justice being the officers of the slave patrol, striding out on horseback in groups of two or three, stopping and frisking for passes. Justice being Charles Pinckney, and his Constitutional right to human property. What does justice mean today when this is what justice meant then?
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But where to run? The guide at Boone Plantation was wrong in saying there was no place to run. There were places to go. The first underground railroad – before there were railroads – ran south, to Spanish Florida, where the Governor gave sanctuary to any runaway who declared faith in Catholicism and allegiance to the King of Spain.
People also ran inland, to maroon communities tucked into the dense forests of cypress and tupelo of what is now Congaree National Forest.
There is a great blue heron just off the left of that photo. It flew off, a blade of blue, wingspan wide as the water as I fumbled with my camera. I stepped off the trail after it and my leg disappeared into the mud up to mid-shin. The dark muck of clay and rotting leaves is eight feet deep, filtering the floodwaters that rise every winter and spring. The floodplain forest was not an easy place to live for maroons, but the twisted cypress knees and heavy muck were a blessing. They kept the away the slave patrol.
If you want to see a maroon settlement, scroll back up to the photo and look close. Follow the creek another two miles to where the Congaree and Wateree Rivers meet, and there it is. You may have to squint.
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The closest town is Eastover. It is the last known address of a young man named Dylann Roof.
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The shooting at a Charleston Church
On June 17, 2015, as the sun set, turning the sky a deep purple, a young white man with sandy-blond hair styled in a distinctive bowl cut invited himself into Bible study at Charleston’s Emanuel AME Church.
Fusion was the first media outlet to note that the Charleston shooting was one day after the June 16 date Denmark Vesey set for his 1822 revolt. Other outlets made the connection by identifying Denmark as a founder of Charleston’s AME Church, which he then used as a base to create a list of combatants and supporters. The list may have contained as many as 9,000 names.
In the aftermath of the mass shooting at Emanuel AME Church, the role the Charleston Police (then, still called the City Guard) had played in attacking the early AME Church received less attention. In brief, Morris Brown and others founded the AME Church in Charleston after they walked out of the Methodist Church in 1815 and started meeting in an empty hearse house near a black cemetery on Pitt Street. Within a year, the congregation raised a building in the Hampstead suburb and started holding services. As an all black congregation that included both free and enslaved people of color, the church made Charleston’s city officials very nervous.
In December 1817, the City Guard stormed the church, beating the congregants and arresting 469 people on the charge of disorderly conduct. The Charleston police that day was doing exactly what they were created to do: keep an eye on black people and disperse their assemblies. Unbowed, the AME congregants continued to congregate, and in June 1818, the City Guard again stormed into the church during a Sunday service. This time, the police focused their attention on the leadership. Reverend Morris Brown and four other ministers were ordered out of the state, or else spend a month imprisoned in the Guard house. Another eight ministers – Denmark Vesey likely among the number – were sentenced to ten lashes or a five dollar fine.
Denmark Vesey was a free man at this point, having bought his freedom after winning the lottery nearly twenty years earlier. Yet, once arrested by the police and sentenced as a criminal, he could still be whipped.
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The police destroyed the church building in Hampstead. The congregation reconvened. After Denmark’s plot was discovered in 1822, the police burned the church building. The congregation reconvened, until 1834, when all black churches were banned under order of state law. The congregation reorganized in 1865, moments after the Union took control of Charleston during the Civil War, moving to its current location in 1872, on Calhoun Street.
Calhoun Street is named after John C. Calhoun, South Carolina’s (and thus the country’s) most vociferous, effective defender of slavery. Not one to mince words, he wrote polemics like Slavery A Positive Good. As Senator, his most impressive (as in horrible) achievement was forcing through the Fugitive Slave Act as part of the Compromise of 1850.
The Fugitive Slave Act of 1850, amending the Fugitive Slave Act of 1793, was vile. It required, as a matter of federal law, citizens to help capture and return runaways. As a federal law, the Act made Harriet Tubman a criminal, whether she was in a slave state or a free state. Even in Maine, once Senator Calhoun forced through the Fugitive Slave Act, Harriet Tubman and others like her faced six months’ imprisonment and $1000 fine for any person they helped to run away.
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Let’s pause here to enjoy the view of the Combahee River from Harriet Tubman Bridge, which now spans the river on US Highway 17 not far south of Charleston.
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One last time, back to that photo of Walter Scott. In the upcoming trial of Officer Slager, the attention will be on Officer Slager’s state of mind. Was he afraid? Did he believe the man he shot was dangerous? Was that belief reasonable?
But this is not the trial of Officer Slager. We are not bound by the strictures of criminal prosecutions as we look at the photo of Walter Scott. There is an oak tree in the foreground. There is a fence in the background. Walter Scott with his leg extended and arms pumping is running away.
In this photo, a bullet has already buried itself in Walter Scott’s back. If the punctum “he is going to die” caused the philosopher Barthes to linger over a photo of the young man condemned in 1865, the punctum of the photo of Walter Scott causes some of us to gasp. Others – Black people, parents of Black children – to cry out, to cry, to rage.
The catastrophe has already occurred, and one part of that catastrophe is that justice for Walter Scott is now left in the hands of a criminal justice system that was created to destroy his ancestors.
The catastrophe has already occurred. But we can honor our desire to “turn the photograph over, to enter the paper’s depth, to reach its other side.”
There is so much to see.
