Forty years ago when I was in law school, one of my professors went out of his way to integrate and sometimes code inappropriate remarks, including racist commentary, in his lectures. Over the course of the semester, I finally had enough and asked him to stop. I argued, unsuccessfully, that I was burdened with twice the work of my classmates (who were either outside the scope of his vitriol or oblivious to it), because like everyone else, I had to listen to his lectures for substance, but also for offense.
I was reminded of that experience this past week when Hennepin County Attorney Mike Freeman explained his rationale for not prosecuting the two Minneapolis police officers responsible for shooting and killing Jamar Clark. That announcement has divided and polarized the community like no other legal argument in recent memory. Radio and television reports, newspaper editorials, commentary and letters to the editor, social media, and old-fashioned water-cooler conversations have figuratively blown up with contention over the merits or lack of merits of Freeman’s decision.
I am among those who believe there are significant and obvious flaws in the county attorney’s analysis of the evidence and law. The fact that the decision not to prosecute has been so divisive is a strong indication that Freeman’s reasoning was neither clear nor compelling.
But, while the text was unpersuasive, the subtext was quite clear. Whether intentional or unintentional, Freeman’s narrative was peppered with gratuitous coded language designed or defaulted to dehumanize Clark — and by extension, African-American men, in general — and provides subliminal justification for his killing.
The county attorney’s timeline paints a picture of Clark as inebriated, violent, profane, irrational, unstable, morose, homicidal and, finally, suicidal, based on a 61-second encounter with police and a somewhat longer interaction with emergency medical personnel. This dog-whistle subtext activated the stereotype of the angry and violent black man who is tone-deaf to reason and must be controlled by force, even deadly force.
Why else would the narrative include a graphic and unabbreviated description of Clark allegedly calling the EMS staff profane names? Freeman’s statement of those words didn’t advance his legal rationale but was the foundation for the subtext that Clark was a loud and uncouth person who needed to be silenced.
The timeline included uncorroborated statements from EMS staff that Clark was “acting kind of odd,” that he “alternated between putting his hands on his head and putting his hands in his pockets” and that his “emotions appeared to be rapidly changing.” Each of these observed behaviors occurred before the police arrived and again, do not advance the narrative of why Clark was shot, but are helpful if the objective was to characterize him as abnormal.
Freeman stated as fact that the police officers repeatedly told Clark to take his hands out of his pockets, even though none of the estimated 50 or so folks standing nearby reported hearing the officers state that command, which is surprising, because police are taught to communicate in a loud and commanding voice. In code-speak, an African-American man who refuses to cooperate with police is by definition unstable and/or a threat and must be put down.
The clearest example of coded commentary is Freeman’s unqualified assertion that Clark told the officers “I am ready to die” while he was in their clutches and one of them had pressed his pistol against Clark’s mouth. Freeman stated that salacious cipher twice in his chronology, despite the fact that none of the 20-plus eyewitnesses to the shooting heard Clark make that utterance. The two police officers who are responsible for Clark’s death corroborated each other. The inference is that Clark desired — and accomplished — suicide by cop.
Freeman’s exercise of prosecutorial discretion to make the charging decision in this case himself rather than refer it to a grand jury may have been a win for public transparency, but it was a loss for public confidence and accountability. In their search for truth and justice, members of the community — and certainly the grieving family of Jamar Clark — should never have to muddle through the narrative of evidence and legal reasoning once for substance and again for coded offense.
Steven Belton is president and chief executive officer of the Minneapolis Urban League.