Policing as Assault

70 Pages Posted: 2 May 2022

Date Written: March 31, 2022

Abstract

From ending qualified immunity, to establishing community control over policing, to eradicating the institution of policing altogether, proposals to remedy the issue of “police violence” are on everyone’s lip. However, in the deep reservoir of proposals, little attention to date has focused on the meaning of “police violence.” How should we think about “police violence” in a manner that permits us to recognize the organizing principles of policing? And what are the benefits, if any, of snapping into focus the meaning of “police violence”? This Article makes two contributions. First, it proposes a new understanding of “police violence,” arguing that policing, itself, is a tortious assault on Black and Brown people that is effectuated through both violent acts and other forms of abuse that create the “circumstances” under which expectations of harmful contact with police become part of the social contract of being a racialized person.

Second, it contends that conceptualizing the harm exacted by police through a tort law lens is harmonious with abolitionist projects to address police violence because a fundamental goal of tort law, like police abolition, is to wrest the power to define harm from state-driven processes to the hands of everyday people, a concept understood in abolitionists’ projects as “power shifting.” At the core of the abolitionist principle of “power shifting” is that the power to define harm should be in the hands of everyday people and the communities in which they live. And a linguistic assessment of the Restatement of Torts shows that “community” is the most referenced justificatory concept in tort doctrine. Not morality, efficiency, or deterrence. Community. Tort law demonstrates that, in understanding the nature of harmful contact, we should not look to how perpetrators of violence understand or justify their own conduct, but to how the communities of those who are subjected to such violence reasonably understand what is being done to them. In both enterprises, law and power are properly mediated by reference to objectively reasonable perceptions within a particular community.

Thus, this Article suggests that recognizing policing as a tortious assault on Black and Brown communities is itself a form of power shifting because it rearticulates the way police violence is constructed by grounding policing in terms of harmful and offensive contact, as judged by the standards of the community. By taking this perspective, including a critical take on the history and current reality of American policing, we can recognize that policing, as currently conceived and operationalized, is intrinsically constituted to use violence—or the implicit threat of violence—to repress disempowered, often poor Black and Brown communities. With this perspective, the possibility of and justification for a reconceptualization of the role of police, and remedies for violence imposed by police, becomes far easier to understand. These remedies, properly understood, are oriented not toward mere reform of an intrinsically violent system, but toward meaningful steps in abolishing that system.

Keywords: Policing, Civil Rights, Torts, Assault, Carceral Abolition, Section 1983

Suggested Citation

MehChu, Ndjuoh, Policing as Assault (March 31, 2022). California Law Review, 2023 Forthcoming, Seton Hall Law School Legal Studies Research No. Forthcoming, Available at SSRN: https://ssrn.com/abstract=4071981 or http://dx.doi.org/10.2139/ssrn.4071981

Ndjuoh MehChu (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102
United States

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