EDITOR’S NOTE: This essay is adapted from A Colony in a Nation (W.W. Norton & Company, 2017).
When a cop tells you to do something, do it. You hear this folk wisdom a lot, and it basically comes in two varieties. The first version is the central lesson of “the Talk” that so many African-American parents give their children about how to survive a police encounter: Keep your hands on the wheel. Don’t make sudden movements. Say “Yes, officer. No, officer.”
The other version isn’t merely practical advice but reflects a deeper belief about the sanctity of police authority. It’s what lies behind the question you so often hear: Why didn’t she just do what the cop said? That inquiry comes unbidden every time an incident of police violence is captured on video. Even when the citizen in question is, say, a 16-year-old foster child sitting at her desk in her classroom in Columbia, South Carolina, refusing to leave, only to be body-slammed and dragged across the room. Why didn’t she just comply? None of this would have happened if she’d just listened.
Section 29-16(1) of the municipal code of the city of Ferguson, Missouri, codifies this principle. It is a crime to “[f]ail to comply with the lawful order or request of a police officer in the discharge of the officer’s official duties.” As the Department of Justice would later show, the police much abuse this statute. Ferguson cops routinely issue orders that have no legal basis and then arrest citizens who refuse those orders for “failure to comply.” It’s a neat little circular bit of authoritarian reasoning.
One video captured during the Ferguson protests in August 2014 encapsulates the absurdity of this abuse of police power. In it, Ferguson police order protesters who are standing in their own yards to go back inside their homes. When they refuse to comply, the police shoot tear gas at them, as one of the men protesting shouts, “This is my backyard! This is our home! This is our residence!”
Can the police do this? Don’t you have a right to stand in your own yard? Thirteen years before the Declaration of Independence, British member of Parliament William Pitt defended the rights of Englishmen to privacy in their own home. He declared: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his forces dare not cross the threshold of the ruined tenement!”
The events on the streets of Ferguson in the days after Michael Brown’s death didn’t outrage black people alone—they spooked people of all races. People who’d never had occasion to personally distrust the police wondered what the hell weapons of war were doing on the streets of this small St. Louis suburb. Politicians from both parties raised their voices to express concern, and to urge restraint, as the nightly news carried images of the kinds of disorder—tear gas, riot gear, clashes with police—that we normally associate with countries where the government sends in armed troops to put down dissidents, or where the possibility of all-out war does not seem remote.
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Of course none of this would have happened, some argued, if protesters had done what they were told. If everyone had listened to the police, everything could have continued as it always had.
Societies operate through formal procedures of law and force but also through norms of compliance. Without those norms, nothing would function. Suppose you want to make a left-hand turn, but a traffic cop says you can’t. You don’t ask her to cite the law. You assume there’s a good reason for her to be blocking that street. Maybe there’s been an accident. Or maybe there will be less traffic, and things will be more orderly, if she keeps you and everyone else from making a left at rush hour. Fine. Fair enough. Do what the cop says.
But as a principle of American self-governance, “do what the cops say” is a pretty strange unofficial motto. This great land of ours was founded by men who, to borrow a phrase, refused to comply, who not only resisted lawful orders but rebelled against the government that issued them. Colonists chased the king’s officers through the streets, beat them, tarred and feathered them, and wheeled them through town for all to mock and shame. As distant as it may seem now, that’s our national heritage when it comes to “lawful orders.”
Several mornings after Michael Brown was shot and killed, and a group of angry youths burned down the local QuikTrip gas station, I ran into a few gentlemen assembled in that same burned-out parking lot, arguing and talking about politics as they cleaned up the site. One man in his 50s, with a wiry intensity, looked into the camera and said, “We want the world to know that we are a dignified, intelligent people, and we deserve every liberty that the United States Constitution affords any citizen.”
But what was the Constitution doing, really, in Ferguson? It seemed an absurdly remote abstraction, as practical a piece of protection as reciting a poem into the barrel of a gun. And yet, in a grand irony, the document itself—and the nation it binds together—was born of almost the exact same set of grievances as those of the protesters getting teargassed in the streets of Ferguson.
We are taught in grade school that the motto of the American Revolution was “No taxation without representation.” The tyrannical King George III insisted on taxing the colonies against their will, employing ever more draconian measures to do so, until the colonists could take it no longer. But dig a little deeper into the history, and it turns out the spark of the revolution was not so much taxation as the enforcement of a particular tax regime—in other words, policing.
Today the word “taxes” conjures up images of our modern administrative state, with automatic payroll deductions and marginal brackets. But that image fails to capture what taxation meant in the colonies at the time of the revolution. Under the British colonial system, the lion’s share of taxes was assessed as tariffs. Merchants and consumers in the colonies had to import nearly all of their products from British companies and pay very steep tariffs to do so. To the mercantilist empires at the time, the logic was impeccable: Colonies meant cheap commodity imports for the home country, a lucrative market for manufactured exports, and significant revenues through tariffs on all those exchanges. (The British would later employ this same logic to outlaw Indians on the subcontinent from making their own salt or weaving their own garments.)
This system, of course, only kicked in when the British Empire made the goods the colonists wanted to buy. Often, many popular products weren’t produced anywhere in the empire. Madeira wine, for example, was made in rival Portugal and became quite popular in the colonies (George Washington was a famous devotee of the beverage), but it had to be smuggled in.
Despite their illegitimacy before British law, local shipping magnates who trafficked in illicit goods like Madeira were men of great wealth, prestige, and power. John Hancock, the man whose signature dominates the founding documents, was one of the most infamous smugglers of his day. He was a criminal, basically—and he and his fellow smugglers kept the colonies running. Without the goods they smuggled, there would have been little local economy to speak of.
Because the black market was so widespread, agents of the Crown tended to view the colonies as a den of iniquity, a seedy place overwhelmingly populated by hustlers, hucksters, and shady characters. One British officer referred to the residents of Newport, Rhode Island, one of the main smuggling hubs at the time, as “a set of lawless piratical people…whose sole business is that of smuggling and defrauding the King of his duties.”
Smuggling in the colonies, in other words, was not so different from drug-dealing in economically depressed neighborhoods and regions today. During the pre- Revolutionary era, smugglers created economic activity that caused huge knockoff effects: a cascade of subsidiary industries and cash flow that kept a whole lot of people in the money. The same goes for dealers in, say, Westside Baltimore or the South Side of Chicago, or northern Maine or eastern Kentucky. Sure, the drug trade is illegal, reckless, and destructive, but it encourages commerce in places where the legitimate economy produces few jobs. Dealers, like smugglers, become institutions—the way, say, New Englanders viewed John Hancock in the years leading to the revolution.
In fact, smuggling was so embedded in colonial society that British officers complained they couldn’t find anyone to enforce the law who wasn’t somehow connected to it. When they did manage to prosecute cases, they found that colonial juries engaged in their own version of nullification. Between 1680 and 1682, New England’s head of customs brought 32 seizure cases to trial. He lost 30.
The laws were unenforceable because the market demand was nearly limitless, and the colonies were an ocean away. And for much of the 18th century, the British Empire’s attitude toward our founders’ rampant smuggling was one of benign neglect. The law was enforced in the same way drug laws are very loosely “enforced” on elite college campuses. Authorities know it’s happening, but they don’t go out of their way to bust people for it. Between 1710 and 1760, as the population of the colonies quintupled to over 1.5 million, the total number of customs agents rose from 37 to 50.
But then, as is so often the case, a war changed everything. Between 1754 and 1763, Britain fought a bloody and expensive campaign against the French and allied indigenous tribes in North America. As the so-called Seven Years’ War dragged on, colonial officials watched in horror as smugglers openly flouted wartime laws that prohibited trading with the French enemy. When Britain signed the Treaty of Paris, ending the conflict, it gained much of Canada and Florida—but it had incurred a staggering amount of debt. The inexperienced young king, George III, turned to tariff enforcement in the colonies as a relatively painless way of replenishing the royal coffers. Or so he thought.
Because taxes were ultimately enforced through police actions, the British crackdown essentially inaugurated America’s first tough-on-crime era. More customs officials were granted more expansive powers, while courts were streamlined to produce swift punishment and avoid the maddening jury nullification that had made it so hard to punish smugglers in previous decades. After 1763, customs officials no longer looked the other way in exchange for small bribes. Instead, they began operating in ways that looked a lot like what we now call “stop-and-frisk.” They took to trawling the coast, stopping merchant ships to search and harass them. Authorities had no specific cause for these searches other than their confidence that they’d find illicit goods.
This was the same approach and justification that the New York Police Department infamously used to search for drugs and guns in the pockets of hundreds of thousands of young men, disproportionately black and brown, on the city’s streets in the 2000s. In a landmark ruling, a federal district judge found that stop-and-frisk amounted to wholesale, systematic violation of the Fourth Amendment protections against unwarranted search and seizure. “While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience,” Judge Shira Scheindlin wrote. “No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life.”
The British legal tradition has no Fourth Amendment, but common law had developed some privacy protections—at least for some. American colonists, however, became 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.
The use of the writs was also disruptive. 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. 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. The student body and their very powerful parents would revolt.
In the American colonies, the backlash was intense. At first, the smugglers and their allies in the revolutionary hotbeds of New England port towns 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. 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.”
But 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.
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, the state must pursue ever more draconian means to snuff it out. And as customs officials were granted more and more power to extinguish illicit trade, they inevitably began to abuse it. Often they made their money as a percentage of the value of the goods they confiscated, putting them in the same position as pirates. 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.
Animus built toward the most famous incident of the pre-Revolutionary period, the Boston Tea Party. Contrary to what you may have learned, the tea dumped from ships of the British East India Company was relatively cheap, 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. 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 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 that 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? 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 the 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 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. In 1990, Ferguson was 74 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, they 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. 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. The statistics bear them out. In 2009, in a city of just 21,000, 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.” 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 percent 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.
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 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. In addition to the oft-abused “failure to comply” statute, Ferguson 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.
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 there. 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. Cops pointed their long guns at civilians who assembled for peaceful protest and fired tear-gas canisters indiscriminately.
Presented with a challenge to its power, an illegitimate regime will often overreact, driven by the knowledge that all it has is force. 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.
To desecrate the dead is to humiliate the living, and humiliation may be the most powerful and most underappreciated force in human affairs. The angry citizen can shout, and the terrified citizen can lock the doors, or flee, or move, or arm himself. But the humiliated citizen can neither express her feelings nor respond to the offense. For it is in the nature of humiliation that it happens at the hands of someone with greater power: the police officer who pulls over the young black man behind the wheel and wants to hear no lip; the corrupt bureaucrat who comes to inspect the businessman’s shop, looking for violations; the surly immigration official who goes through the immigrant’s belongings.
In Ferguson, people were enraged at Michael Brown’s death and grieving at his passing, but more than anything else they were sick and tired of being humiliated. At random, I could take my microphone and offer it to a black Ferguson resident, young or old, who had a story of being harassed and humiliated. A young honors student and aspiring future politician told me about watching his mother be pulled over and barked at by police. The local state senator told me that when she was a teenager, a police officer drew a gun on her because she was sitting in a fire truck—at a fireman’s invitation. At any given moment, a black citizen of Ferguson might find himself shown up, dressed down, made to stoop and cower by the men with badges.
We can all access some version of this feeling—even people of tremendous privilege can know the sting of humiliation. But for subjects of authoritarian rule, humiliation is the permanent state of existence. “There is the man at the top,” Frantz Fanon wrote of his native Martinique, “and there are his courtiers, the indifferent (who are waiting), and the humiliated.” In a colonial system, you can have power and be close to those with power, or you can be humiliated.
To the founders, the solution to the humiliations of the Crown was violent revolution, then a republic. Of course, in the tortured and prolonged negotiations that ultimately created the Constitution, many of the original grievances—particularly the unreasonable searches and seizures, the lack of due process, and the heavy-handed quartering of soldiers in colonists’ homes—went unaddressed. Final ratification came only after citizens were assured that a Bill of Rights, which explicitly addressed many of the Crown’s egregious overreaches, was on its way. The framers thus included in the Fourth Amendment these words:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The existence of the Bill of Rights is an acknowledgment of the fact that democracy, by itself, is no guarantee against the potential excesses of the state’s police power. But on the ground in Ferguson, the Bill of Rights itself seemed to have no force. So the question that kept tugging at me, amid the tear gas and the sonic cannon, the shouts and protests and fires, was: What exactly was “the law” in this heretofore little-known town? Whose authority held here, and why? Was it covered by the Constitution, or had we all managed to slip into some legal multiverse, where the standard rules, the ones our forefathers had fought and died for, that we pledged allegiance to as schoolchildren, simply did not exist?
Perhaps the most remarkable aspect of the DOJ report is how open and honest the city officials are about their police department’s purpose, how certain they seem that no one is watching them. Their comments suggest no winking and nudging, no ironic and knowing smiles. Just plain statements of financial goals, of dollars and cents. At one point the department started a new “I-270 traffic enforcement initiative” in order to “begin to fill the revenue pipeline.” The masterminds behind it warned that the initiative would require “60 to 90 [days] of lead time to turn citations into cash.”
None of the people administering this enterprise appear concerned that what they’re doing is a gross violation of their duty to their constituents. And when you ask yourself how this report came to be written, the reason for their nonchalance is evident. The damning pages of the report exist only because a 17-year-old black boy was shot and killed by a police officer, and because that shooting led to an uprising. That uprising in turn led to the DOJ getting involved, which in turn led to the investigation that produced this audit.
But how many other police departments are like the one in Ferguson? We happen to know of this one because of this young man’s death, because of the outrage and activism that followed that death. But Ferguson’s practices were hiding in plain sight for all to see for years. And in fact, when I talked to people in Ferguson, they didn’t think there was much that was special about it. A Washington Post investigation of the municipal court system in the towns surrounding Ferguson found identical violations across the board. This is what “the law” looks like in the Colony, where real democratic accountability is lacking, when the consent of the governed is absent or forsaken or betrayed, and when the purpose of policing and courts isn’t the maintenance of safety and provision of justice but rather some other aim.
But empires of old kept their colonies at a distance: Rome conquered the Gauls across the Alps. France ruled Algeria from across the Mediterranean. King George III dispatched troops across the Atlantic to administer the New World. In the United States in 2016, such distance does not exist: The “rough” part of Ferguson is maybe a thousand yards from the “nice” neighborhoods.
And so the maintenance of the Nation’s integrity requires constant vigilance. The borders must be enforced without the benefit of actual walls and checkpoints. This requires an ungodly number of interactions between the sentries of the state and those the state views as the disorderly class. The math of large numbers means that with enough of these interactions and enough fear and suspicion on the part of the officers who wield the gun, hundreds of those who’ve been marked for monitoring will die.
One of those deaths was a Staten Island grandfather named Eric Garner, who was choked to death by a New York cop in July 2014. In a small working-class neighborhood in Staten Island, Garner sold individual cigarettes—loosies—which are illegal in New York. In other words: Eric Garner, like John Hancock, was a merchant trafficking in black-market goods. He was offering what the market demanded—a cheaper, unbundled, untaxed cigarette. And the government seeking to crack down on this offense harassed him—he’d been arrested twice for selling loosies in 2015 alone. Day after day, Eric Garner simply had to swallow a particular type of ritualized humiliation. He had to take it. Every day, the humiliation and frustration built within him.
On the day he died, Eric Garner was wrestled to the ground and put into a chokehold as he screamed with increasing desperation, “I can’t breathe,” 11 times, until he lost consciousness and died. All this was recorded as plain as day on a smartphone that captured Garner’s final protests: “Every time you see me, you want to mess with me. I’m tired of it. It stops today…. Every time you see me, you want to harass me. You want to stop me [garbled] selling cigarettes. I’m minding my business, officer, I’m minding my business. Please just leave me alone. I told you the last time, please just leave me alone. Please please, don’t touch me. Do not touch me.”
Those final words could have been just as well addressed to a colonial customs officer: Every time you see me, you want to harass me. It stops today.
