Frank Rudy Cooper
89 Geo. Wash. L. Rev. 1452
Recent uprisings over the failure to hold police officers responsible for killing civilians—from Ferguson, Missouri to nationwide George Floyd protests—show the importance of excessive force as a social problem. Some scholars have launched racial critiques of policing as resulting from explicit or implicit racial bias. Others blame the United States Supreme Court’s permissive excessive force doctrine. This Article is the first to demonstrate that an intersectional analysis of both race and class helps explain both aggressive policing and the Court’s deference.
A key contribution of this Article is to reveal several takeaways from intersectionality theory’s basic insight that unique senses of self-identity and unique stereotypes form at places where categories of identity meet. First, seemingly distinct identities, such as race, gender, class, and so on, mutually construct one another such that, for example, racial discourses both influence and are influenced by gender discourses. Second, the categories of identity correspond with systems of social power, such as racism, sexism, classism, and so on. Third, those systems also intersect with and mutually construct one another, resulting in interlocking hierarchies of identities. Fourth, an individual’s social location—where they are in the map of categories of identity and systems of social power—interacts with social institutions, such as policing, in ways that exacerbate or ameliorate oppression. Considering the interactions between social locations and social institutions is an undertheorized aspect of intersectionality theory. This Article thus applies intersectionality theory to better understand how race and class come together to produce police excessive force.
This Article’s new insight is to use intersectionality theory to connect the scholarly literature on class that critiques the Western neoliberal economic order to the scholarly literature on police excessive force. Neoliberalism includes these components: (1) economic deregulation; (2) emphasis on individual responsibility; (3) slashing welfare; and (4) expansion of punitive apparatuses. It has created a “centaur state,” which, like the mythological creature, is a comely human on top and a beast on the bottom. The centaur state is easy on the top of society through economic deregulation and emphasis on individual responsibility; however, neoliberalism’s economic deregulation and dismantling of the social safety net leaves behind a vulnerable population known as the “precariat.” The centaur state is hard on the bottom of society, as it seeks to push most of the precariat into low-wage, low-security jobs by slashing welfare and to incapacitate the remainder by increasing incarceration. The neoliberal economic order’s need to incarcerate the precariat thus led to aggressive new forms of policing.
This Article argues that three phenomena found by intersectional analysis of race and class help explain disparate policing of poor black and brown neighborhoods versus that in rich white neighborhoods. First, the post-Warren Court has cooperated with a neoliberally inspired politics of law and order by deregulating the police through, inter alia, permissive excessive force doctrine. Second, the “new policing”—aggressive intrusions based on predictive data to prevent rather than solve crime—applies the aggressive “warrior cop” mode in poor black and brown neighborhoods and the more protective “guardian officer” mode in rich white neighborhoods. Third, the potential for excessive force that inheres in warrior policing is what enhances boundaries between “good” and “bad” neighborhoods, whites and certain racial minorities, and the rich and the poor. In light of these linkages and dichotomies, this Article calls for further intersectional studies of policing that consider class as an equal factor with race, among other identities.
