Chapter 11
Torches and pitchforks
Every what the Mississippi white man pose with, he got to be met with. I said, “Meet him with ever what he pose with. If he pose with a smile, meet him with a smile, and if he pose with a gun, meet him with a gun.”
Hartman Turnbow
Among the most contentious issues in civil disobedience is the use of force by protesters, from hugely disruptive actions to outright violence. In fact, I would expect most commentators to argue that violence falls outside the scope of civil disobedience altogether, an argument which I dismiss as purely semantic. Sometimes the only avenues left for citizens of conscience to resist the state’s encroachment on civil rights are insurrection and martyrdom—and in the final chapter of this book I warn against martyrdom.
This topic is more relevant than ever nowadays as troops are deployed brazenly in American cities both as a test of presidential power and a means to erode guardrails against autocratic rule. The unchecked and violent intrusion of masked Immigration and Customs Enforcement (ICE) agents abducting, brutalizing, and even shooting civilians in broad daylight, culminating with the murders of Renée Nicole Good and Alex Pretti in Minneapolis in January 2026, with the unabashed sanction of the White House,1 has brought the state militia into close proximity with increasingly hostile protesters coming to the realization that peaceful protests alone cannot contain autocratic derives driven by the vindictive delusions of an egomaniac.
Of course the judicial system shall never acknowledge this. In Civil Disobedience and the Law, which I’ve mentioned in the introduction, Frank M. Johnson expresses his visceral revulsion to the riots of his time as follows:
The preceding distinctions illustrate lawful means for protesting and challenging the law. It is now appropriate to consider distinctions between unlawful conduct and civil disobedience. First, I would observe that civil disobedience does not necessarily involve violence. There is no legal or moral justification for the rioting, burning, looting, and killing that have occurred in the cities of Los Angeles, Detroit, Chicago, Newark, Kansas City, and Washington. Understandable, perhaps; justifiable, never. Similarly, all of us feel nothing but revulsion at the senseless and brutal killings of President Kennedy, his brother Robert, Dr. Martin Luther King, or of Medgar Evers, Schwerner, Cheney, and Goodman in Jackson and Neshoba Counties, Mississippi, or of Viola Liuzzo, the Rev. Mr. Daniel and the Rev. Mr. Reeb in Lowndes and Dallas Counties, Alabama. These acts are not an assertion of rights; nor are they justified under the guise of civil disobedience. They are nothing more than the infliction of gross wrongs upon innocent citizens; they are insurrections against government. Participants in such activities, and those who by their inflammatory and defiant statements possibly incite such activities, disregard utterly and completely the supremacy of any law other than the law of the jungle.2
This stance is myopic, but don’t forget that the courts may never condone civil disobedience, much less rebellion, since that would obviously undermine their very authority, even with public confidence in the judiciary hanging in the balance (see Chapter 2). When a government does enact the law of the jungle and preys upon its own citizens, violent escalation is the only sane recourse, the scruples of those who have known only peaceful times be damned, that of the rigid minds who have learned nothing from living through madness even more so. My apprehension toward censuring pioneers who have learned things the hard way notwithstanding (see Chapter 1), I am merciless with those too obtuse to learn from humanity’s worst failings—including the courts—even as History keeps repeating itself.
In Chapter 7 I mentioned the role television played in the American civil rights movement. Some contemporary authors have argued that guns have also proven instrumental in its success. Their argument is that armed black militias, especially in the aftermath of World War II when so many Afro-American veterans came back emboldened from the front lines, have enabled nonviolent resistance by carrying firearms as a deterrent against the terrorism they were frequently subjected to, by civilian militias and authorities alike.3 Without these groups, pacific tactics would have been brutally suppressed long before Birmingham, or extinguished afterward.
Martin Luther King himself was ambivalent about nonviolence. Following the firebombing of his home in 1956, he acquired firearms and even applied for a concealed carry permit, which was denied.4 He eventually forswore all violence and renounced his weapons, an attitude which put him at odds with some of his peers who worried his strategy would get him killed. Perhaps King instead felt he no longer needed weapons since his brothers had his back.
Likewise, the legacy of the much maligned Black Panther Party is being reassessed by historians, who point out that for better or worse the organization was an authentic driving force of the civil rights movement.5 Even such a controversial figure as Huey P. Newton, co-founder of the party, has been honoured in 2021 with a memorial statue in West Oakland.6
Personally, I prefer underhanded legal strategies to crude implements such as weapons, out of pragmatism rather than scruple. Nevertheless, I have to admit it’s hard to argue against such a deterrent as the muzzle of a gun. Many progressives must be in agreement, since leftist and liberal gun groups across the United States report a surge of members following the murder of Alex Pretti by ICE officers in broad daylight.7 History does repeat itself indeed, as today’s legal observers tracking ICE emulate Black Panthers’ copwatching in the late 1960s—whose armed patrols themselves have made a resurgence in Philadelphia as of late.8
The automatism defence
Speaking of Newton, he was notoriously involved in an October 1967 shooting incident with police officers which led to a most peculiar defence at trial, reminiscent of the necessity defence’s legal theory of moral involuntariness (see Chapter 4).
Newton was charged with the murder of Oakland Police Department officer John Frey and assault with a deadly weapon against his colleague Herbert Heanes. The alleged crime unfolded at a traffic stop, during which Frey ordered Newton out of the car so he could arrest him. Heanes testified that he heard a gunshot, and as he turned around with his own weapon drawn a bullet grazed his arm, so he fired at Newton’s abdomen, after which he heard additional gunshots from the direction the two men tussled. Frey was pronounced dead at the hospital from five gunshot wounds. Oddly, neither his revolver nor the murder weapon was ever found.9
In his defence at trial, Newton denied shooting the officers nor to have carried a pistol on that day, and that Frey shot him first. His testimony went as follows:
Seizing defendant’s left arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer “kind of pushing” him, past the first police car to the back door of the second one. Defendant opened his book and said, “You have no reasonable cause to arrest me.” The officer said, “You can take that book and stick it up your ass, Nigger.” He then struck defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant felt a “sensation like … boiling hot soup had been spilled on my stomach,” and heard an “explosion,” then a “volley of shots.” He remembered “crawling … a moving sensation,” but nothing else until he found himself at the entrance of Kaiser Hospital with no knowledge of how he arrived there. He expressly testified that he was “unconscious or semiconscious” during this interval, that he was “still only semiconscious” at the hospital entrance, and that—after recalling some events at Kaiser Hospital—he later “regained consciousness” at another hospital.
The order in which shots were fired is unclear based on testimonies, while it appears Frey might have been shot by his own service weapon being turned against him during the scuffle. Normally the accused could assert legitimate defence, but that option was taken off the table once he claimed to have no recollection of ensuing events. This left only the unconsciousness defence, which in legalese implies the defendant wasn’t aware of his actions at the time of the offence:
The defense called Bernard Diamond, M.D., who testified that defendant’s recollections were “compatible” with the gunshot wound he had received; and that “[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so.”
Newton was convicted of voluntary manslaughter instead of outright murder, an indication that the jury actually bought his story. The defence challenged the verdict before the Court of Appeal of California, on the grounds that the court had neglected to instruct the jury that the unconsciousness defence could fully exonerate the defendant. The court agreed and ordered a new trial; he would get two, both concluding with deadlocked juries. The prosecution threw up its hands in defeat, to the delight of ‘Free Huey!’ campaign supporters,10 over five thousand of which had rallied in July 1968 during his original trial.11
Of course the defence of non-insanity automatism does not automatically prevail, given its high burden of proof and the difficulty of convincing a jury of the defence’s air of reality. The Supreme Court of Canada has determined in 1999 that it befalls on the defendant to establish a proper evidentiary foundation for automatism, and also to rule out any mental disorder causing it.12 The resulting margin is indeed very narrow, and the defence has been rejected several times by Canadian courts due to lack of evidence.
That being said, there are certain occupational hazards related to activism which can form the basis of an automatism defence, such as concussions and asphyxia, both likely consequences of proximity to police forces and rival factions.
In 1969 the Supreme Court of Nova Scotia overturned the convictions of a man who illegally drove a truck after suffering a concussion resulting from an assault.13 The defence has also been validated by the Ontario Court of Justice in 2012 in a case involving a parking enforcement officer whose head hit the ground face first after being knocked down; his conviction for assault in retaliation was nonetheless upheld due to inconclusive expert evidence.14
From a medicolegal standpoint, post-traumatic amnesia may indeed form the evidentiary basis of a sane automatism defence.15 Amnesia can also result from traumatic asphyxia,16 which is a predictable consequence of chokeholds,17 and also from electroshock weapon discharges, even if aimed away from the head.18 Tear gas canisters can cause concussions upon impact, while the gas proper can cause asphyxia in poorly ventilated areas.19
God forbid I ever suggest activists resort to a dishonest defence upon being charged with assault, especially against peace officers. I would rather invite the latter to reflect upon the trauma inflicted by controversial restraining techniques and crowd control ordnance, in order to prevent such unfortunate incidents and to spare defendants the trouble of invoking the automatism defence before sympathetic jurors. Just saying.
Disqualified immunity
Who the fuck do you think you’re fucking with? I’m the police, I run shit here. You just live here. Yeah, that’s right, you better walk away. Go on and walk away… ’cause I’m gonna’ burn this motherfucker down. King Kong ain’t got shit on me. That’s right, that’s right. Shit, I don’t, fuck. I’m winning anyway, I’m winning… I’m winning any motherfucking way. I can’t lose. Shit, you can shoot me, but you can’t kill me.
Training Day (2001)
Don’t hesitate to assert creative defences against the police, since it conversely invokes some of its own.
The nastiest is qualified immunity, a doctrine invented by the United States Supreme Court in 1967 to shield law enforcement officials from prosecution should they violate the law in the course of their duties.20 It arose with the mass arrests of Freedom Riders for using a segregated interstate bus terminal waiting room in Jackson, Mississippi, in September 1961, under a breach of peace statute which would be declared unconstitutional in 1965. The court upheld the Fifth Circuit Court of Appeals’ reasoning that police officers weren’t bound by law to predict the outcome of eventual constitutional challenges to the underlying legislation, and consequently enjoyed qualified immunity as long as they acted in good faith.
Qualified immunity wouldn’t have gotten out of control if not for another Supreme Court precedent made in 1982, which rose the bar even further by asserting police officers could only be prosecuted if their conduct violated a clearly established precedent.21 This opened the floodgates for bogus acquittals, for two reasons. One, it created an obvious Catch-22: new precedents cannot be made if courts dismiss cases on the basis that defendants enjoy qualified immunity due to lack of precedent. And two, it invited moving the goalposts by stressing irrelevant distinctions, such as in this uncanny case of a correctional officer using pepper spray on an inmate for no reason whatsoever, thus violating multiple clearly established precedents to the contrary, on a basis so absurd I prefer to reproduce it verbatim:
Above, we held that the spraying crossed that line. But it was not beyond debate that it did, so the law wasn’t clearly established. This was an isolated, single use of pepper spray. McCoy doesn’t challenge the evidence that Alamu initiated the Incident Command System immediately after the spray, nor that medical personnel promptly attended to him and provided copious amounts of water. Nor does he provide evidence to contest the Use of Force Report’s finding that Alamu used less than the full can of spray. In somewhat related circumstances, we held that spraying a prisoner with a fire extinguisher “was a de minimis use of physical force and was not repugnant to the conscience of mankind.” Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (per curiam). Similarly here, on these facts, it wasn’t beyond debate that Alamu’s single use of spray stepped over the de minimis line. For that reason, the law wasn’t clearly established.22
That being said, the decision was so preposterous that the Supreme Court remanded it in February 2021, on the grounds that such an obvious civil rights violation did not require an identical precedent, and ordered the lower court to take a November 2020 decision into consideration.23 But the harm was long done; from 1982 onward, it had become virtually impossible to hold a peace officer accountable for any civil rights violation, no matter how egregious, even after the court introduced an exception for obviously unconstitutional conduct in 2002.24 That is, until Derek Chauvin’s trial for the murder of George Floyd.
In May 2020, George Floyd, a black man, was apprehended by four Minneapolis police officers over a report he used a counterfeit $20 bill to buy cigarettes, already abusive a pretext to begin with (it can happen to anyone without intent; I myself ended up with a counterfeit $10 bill many years ago). Floyd died during the arrest, due to white officer Derek Chauvin pressing his knee against the suspect’s neck for over nine minutes while the latter lay prone in handcuffs, amid squeals that he couldn’t breathe and earnest bystander pleas to release him.25
In this case there were no clearly established precedents attesting to Chauvin’s specific conduct being unreasonable, nor did it meet the extremely high bar set for obviously unconstitutional conduct, and yet the defendant was unsuccessful at asserting qualified immunity at his murder trial. Can you tell what happened inbetween that may have convinced the judge of the defendant’s conduct being nonetheless obviously unconstitutional? Nationwide protests in May and June 2020, in over two thousand cities from coast to coast,26 that’s what.
And even that is an understatement. Minneapolis rioted for five days in the aftermath of the incident; the National Guard had to be dispatched just to support firefighters as dozens of buildings across the city burned, including the 3rd Precinct police station.27 The situation was similarly heated in Los Angeles, where the governor declared a state of emergency and mobilized the National Guard at the mayor’s request, to counter civil disorder not seen since the Rodney King Riots in 1992.28
Deprived of a get-out-of-jail-free card, Chauvin’s defence team was reduced to attempting Hail Mary arguments, like pointing out as justification that an unconscious suspect may reawaken and become combative—which ironically affirms the automatism defence introduced in the previous section.29 The defendant was nonetheless convicted of second-degree unintentional murder in April 2021 then sentenced to 270 months in prison.30 The State of Minnessota Court of Appeals upheld both the verdict and sentence.31 Further appeals were denied,32 as even the Supreme Court wouldn’t take on a case this toxic.
Public outrage triggered a legislative push for increased police accountability, starting with the George Floyd Justice in Policing Act of 2021, which among other provisions would have curbed qualified immunity. The bill passed in the House of Representatives only to die in the Senate; even then, it has been reintroduced in subsequent Congressional sessions.33 Dozens of states have attempted to pass their own measures, largely in vain.34 The city of New York, however, did enact an ordinance in March 2021 ending qualified immunity for its police officers,35 a rare victory among a jumble of watered-down measures and partisan gridlock.
Hope is not lost, as judges have started pushing back. Here’s the rationale behind a 2024 US District Court for the Southern District of Mississippi decision denying qualified immunity to a detective who falsely accused someone of capital murder using for all evidence a lying, drug-impaired jailhouse snitch:
Qualified immunity was invented by the Supreme Court in 1967. In plain English, it means persons wronged by government agents cannot sue those agents unless the Supreme Court previously found substantially the same acts to be unconstitutional. See Mullenix v. Luna, 577 US. 7, 11-12 (2015). A cynic might say that with qualified immunity, government agents are at liberty to violate your constitutional rights as long as they do so in a novel way.
Most plaintiffs in this situation argue that the officer that wronged them isn’t entitled to qualified immunity. Green does that. Unlike others, though, he has taken the next step and argued that qualified immunity is itself unlawful. He joins lawyers, professors, judges, and even Supreme Court Justices who have called for the doctrine’s re-evaluation, if not its abolition.
The Court agrees with these calls for change. Congress’s intent to protect citizens from government abuse cannot be overridden by judges who think they know better. As a doctrine that defies this basic principle, qualified immunity is an unconstitutional error. It is past time for the judiciary to correct this mistake.
The Court presents Green’s allegations, the governing legal standards, and the substantive case law below. It concludes that the detective is not entitled to qualified immunity. Her actions violated clearly-established law. Even if this were not the case, the detective’s quest would fail. For qualified immunity has no basis in law. It is an extra-constitutional affront to other cherished values of our democracy.36
With this decision the court effectively engaged in civil disobedience by refusing to acknowledge Supreme Court precedents. But you know what? Judges enjoy judicial immunity, which shields them from liability arising from exercising their prerogative while on the bench, so there.37
The Fifth Circuit Court of Appeals upheld the decision to deny the defendant qualified immunity, but begrudgingly overturned the District Court’s rationale as follows:
Finally, we turn to Green’s argument that qualified immunity is unlawful. Though recognizing the uphill battle, Green preserves his argument that qualified immunity rests on an erroneous interpretation of the Civil Rights Act of 1871 and is “unsound law.” The district court, agreeing with Green, provided significant background on the doctrine’s faulty underpinnings and effects.
But given our role as “middle-management circuit judges, we must follow binding precedent.” The district court is “not free to overturn” our circuit’s precedent, nor are we permitted to overturn the Supreme Court’s. We readily acknowledge the legal, social, and practical defects of the judicially contrived qualified-immunity doctrine, but we are powerless to scrap it.38
Naturally, the courts may never acknowledge that the turning point in the debate was a wave of riots. Yet civil disorder remains the mob’s ultimate recourse when every democratic guardrail fails and every legal avenue is exhausted. Woe betide any government which disparages the most fundamental prerogative of an oppressed populace.