The Supreme Court just ruled that rights don’t really matter

OPINION: America’s highest court recently declined to hear a case that essentially redefined the word “peaceful” and eliminated some people’s right to protest.

Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.

Officially, no one killed Alton Sterling. 

On July 5, 2016, Baton Rouge, La., police officer Blane Salamoni pumped six shots into the back and chest of 37-year-old Sterling as Officer Howie Lake II held him down. Because Louisiana Attorney General Jeff Landry concluded that the officers “acted as reasonable officers…and were justified in their use of force,” neither officer was found guilty of murder, manslaughter or excessive use of force against Sterling. The U.S. Department of Justice determined there was “insufficient evidence” to pursue charges. And, even though the local government eventually settled a wrongful death civil suit with Sterling’s family for $4.5 million, neither Salamoni, Lake, the Baton Rouge Police Department nor the city had to answer for their actions in a court of law. Technically, they just did some things that — through no fault of their own — resulted in a person being not alive. That’s how the law works for cops … 

And white people. 

If you’re Black, it’s a little different. For instance, when an unnamed police officer was injured during a July 9, 2016, protest against the police department that did not murder Sterling, everyone found someone to blame:

Black people.

Baton Rouge is a majority Black city, so it didn’t matter that the officer did not produce a shred of evidence proving that protest organizer DeRay Mckesson “colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed … that attacking the police was one of the goals of the demonstration.” Most of the protesters were Black, so it didn’t matter that investigators had no idea who threw the piece of concrete that caused a “loss of teeth, injury to jaw, [and] injury to brain and head” of the anonymous officer.” Like Sterling’s Black life, nothing mattered. 

But Mckesson is also Black. So, in 2019, the U.S. District Court for the Middle District of Louisiana ruled that Mckesson could be held responsible for the officer’s injuries. In this unique case, it did not matter that Mckesson didn’t injure anyone. The U.S. Fifth Circuit of Appeals later affirmed the ruling, paving the way for a civil court jury to find Mckesson negligent for a crime he did not commit. And despite the judges concluding that Mckesson nor the march he organized had any connection to the Black Lives Matter organization, every news outlet has reported who was at fault for this single incident of reverse police brutality:

 “Black Lives Matter activist DeRay Mckesson.”

On Monday, the U.S. Supreme Court declined to hear Mckesson v. Doe. In an unsigned, four-and-a-half page decision, the same Supreme Court that seems poised to hand a victory to Donald Trump and the insurrectionists affectionately known (to me) as Seal Team Jan. 6, explained that “a violent confrontation with a police officer was a foreseeable effect” of protest organizer DeRay Mckesson “negligently directing a protest.” The Supreme Court’s official act of cowardice leaves a lower court decision in place that essentially eliminates the right to organize a protest in Louisiana, Mississippi and Texas, the states covered by the Fifth District decision. 

I’m sure it’s just a coincidence that Mississippi and Louisiana have the highest percentage of Black residents while Texas has the largest Black population. Even Fifth Circuit Judge Don Willett thinks that his colleagues are wrong. In his lone dissent, he argues that “Mckesson cannot be liable for violence unless he encouraged violence.” Willett argues that the current ruling incentivizes anyone who disagrees with a protest to show up and start throwing rocks.  

“To spell it out, I am concerned that those who oppose a social or political movement might view instigating violence (or feigning injury) during that movement’s protests as a path toward suppressing the protest leader’s speech—and thus the movement itself,” wrote Willett. “Dr. King’s last protest march was in March 1968, in support of striking Memphis sanitation workers … Had Dr. King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as ‘magnificent’ — ‘a promissory note to which every American was to fall heir’ would countenance his personal liability.” 

Willett repeatedly referred to the Supreme Court’s 1982 NAACP v. Clairborne decision, which clearly established that peaceful protest organizers could not be liable for damages. Even Supreme Court Justice Sonia Sotomayor felt the need to remind her colleagues that another SCOTUS decision barred the use of negligence to punish speech. To be fair, the justices who decided Mckesson vs. John Doe may have simply forgotten Counterman v. Colorado.

When the Fifth Circuit heard Mckesson v. Doe, Counterman v. Colorado was two weeks old. 

Unfortunately, Sotomayor’s rationale and Willett’s dissent fell on deaf ears because they were doing it wrong. When it comes to equality, liberation and justice for Black people, logic and reason are as ineffective as declarations and constitutions. However, I came up with an idea that could clear up this judicial confusion and drum up support for these anti-free speech laws. My suggestion may be controversial and sound a little radical at first, but I really think it could work. 

Equal protection under the law.

No, seriously, hear me out. What if Donald Trump had to abide by the same rules as Mckesson? What if police were subject to the same scrutiny as a man standing in front of a store selling CDs? What if the white women protesting critical race theory at school board meetings were held liable for the history that Black kids didn’t learn? What if people who caught COVID could sue anti-maskers, and school shooting survivors could sue the NRA, and trans kids could sue Florida Governor Ron DeSantis, and Black people in small towns could sue Jason Aldean, and everyone on Black Twitter filed a class-action suit against Elon Musk?

Now that’s justice.

Of course, we’d probably have to make some kind of amendment to the U.S. Constitution to make it legal. Sure, we’ve never tried anything like this in the history of this country, but I truly believe my “equal protection clause” just might work. To be fair, I tend to hold some crazy beliefs, including one that always seems to come as a surprise to most white people: 

There is no such thing as “law.”

Laws are impartially enforced and objectively applied. They are used to impose justice and redress wrongs. If a rule or code of conduct is arbitrarily applied or subjectively administered, it is just a suggestion. And in America, there is not a single regulation, judicial precedent or piece of legislation that has ever been enforced without consideration of the capricious, irrational consideration of race. Even the system of white supremacy has no rhyme or reason. It’s just an unwritten, preposterously inconsistent code of conduct that governs America’s behavior, but it’s not real.

If that seems absurd, you can’t possibly fathom how crazy it feels to be Black in a country with no laws. Think of how it feels to know your right to life, liberty and happiness are just worthless words scrawled on an unenforced promissory note. Imagine being disproportionately targeted by a state-sanctioned, legally protected group of trained killers. Yet, while peacefully petitioning your government for police accountability, consider the lunacy of being held accountable for not injuring a member of a group that is never, ever, ever, ever, ever, ever ever ever ever held accountable for their actions. If I told you that opinion came from someone who literally had the title of “justice,” you’d swear I was making this up.

I am not making this up.

Then again, I’ve heard that there’s a place in America where people actually swear they “will administer justice without respect to persons, and do equal right to the poor and to the rich …”

Now, that’s unbelievable.

Michael Harriot is a writer, cultural critic and championship-level Spades player. His NY Times bestseller  Black AF History: The Unwhitewashed Story of America is available in bookstores everywhere.

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