photograph of Lady Justice figurine with shadow cast on wall behind her
"Justice is blind ( ...or maybe not )" by kanvag (via depositphotos)

This week, as is the case with every week in the US, we have seen Black people threatened with harm and be killed for no other reason than their race.

I use “see” purposefully. The increased use of cameras to document the context in which the harassment, assault, and murder of Black people has raised awareness in recent years beyond the communities that have been experiencing this violence continuously. The incredible and outsized use of force and aggression towards non-white people is laid bare by the traumatic videos of recording the violence.

White supremacist violence from the past week includes the murder of George Floyd, an unarmed man, by four Minnesota police officers and the racist, false police report of Amy Cooper against Christian Cooper, a bird watcher in Central Park.

While both the police officers and Amy Cooper are no longer employed and may face further consequences, their actions form part of a much broader system of oppression and violence—one that it isn’t clear we are using sufficient moral language, or have the legal framework, to fully capture.

Amy Cooper can face misdemeanor charges for making a false report under New York law. The penalty for such misdemeanors in New York is up to one year in jail, and a fine up to $1,000. The reasoning beyond such statutes is that by making a false report you have done harm to the criminal justice system itself. The aspects of the law include a mens rea element (a state-of-mind aspect), requiring that you knew the report to be false, and an actus reas element (the behavior of the violation), which is actually reporting the crime to the relevant authorities. Cooper meets both of these elements pretty straightforwardly.

However, as this statute targets the harm done to the justice system and peace officers, it is easy to see that there is more to the moral and legal context of her behavior than tying up police resources.1 As is clear in the video Christian Cooper recorded, Amy Cooper focused on Christian Cooper’s race both in her threats to him personally off the call, and by heightening her vocalization of distress while describing him as “African American” in particular to the operator. She thus put Cooper at significant risk, harnessing her power as a white woman and by targeting him as a Black man, directing police attention on him. The shared understanding of the danger that Christian Cooper experiences in the world is necessary for her threats to land and her harassment to be effective. Amy Cooper marshaled her power to threaten Christian Cooper as a Black man in particular, given the context of police violence.

As Christian Cooper said when explaining his filming of her harassment, “We live in an age of Ahmaud Arbery, where Black men are gunned down because of assumptions people make about Black men, Black people, and I’m just not going to participate in that.”

In order to capture the racist motivations behind Amy Cooper’s behavior, we could look to the legal category of hate crimes. In New York, hate crimes are particular crimes that are committed targeting someone because of a perception or belief about certain protected identities. These include race, gender, religion, age, disability, sexual orientation, as well as others. “Reckless endangerment,” for example, is one of the crimes that can be classified as a hate crime when targeting an individual based on their race. To include Amy Cooper’s behavior under this category would be expanding the current understanding of reckless endangerment, but it could be a route to adding the features of police endangerment into our evaluation of her behavior.

This crime involves a mens rea of recklessness: disregard for the foreseeable consequences of the action; and actus reas of: creating a substantial risk of serious physical injury to another person. Amy Cooper’s false report involves these elements, while targeting Christian Cooper as a Black man. Note that the accused person is not required to intend (aim explicitly at) the resulting or potential harm in order to qualify as reckless endangerment. If a case could be made that Amy Cooper was in fact aiming at, or intending that Christian Cooper be harmed by her actions, this crime could qualify as some degree of attempted assault and still potentially be under the hate crimes classification.

The distinction that is important here is that Amy Cooper is aware of the risk of harm she is placing Christian Cooper in by drawing police attention to him, but she is either disregarding that risk or marshaling that risk (bringing us into the realm of intentionality).

The potential objection to this claim would be that Amy Cooper is unaware of the threat of violence and harm she is placing Christian Cooper in, in which case her behavior was negligent. This should at least be a culpable negligence, however, and would be difficult to establish for anyone given our current context of recorded and shared instances of violence towards Black people and the fact that Amy Cooper pointedly racializes the interaction.

To appeal to negligence, Amy Cooper would have to claim to not realize that her actions in drawing police attention to Christian Cooper in Central Park creates a substantial risk of physical injury—as a white woman speaking to an operator with heightened distress in her tone targeting a Black man, she would be claiming to be unaware of the systemic violence that she is wielding.

To paraphrase Christian Cooper, we live in the world of Ahmaud Arbery, whose death again showed that assumptions made about Black men by police officers mean that going jogging put Black men in serious risk. We also know that relaxing in the comfort of one’s own home can put Black people at risk of serious threat when confronted by police (# BreonnaTaylor, #BothemSean and #AtatianaJefferson). So can asking for help after being in a car crash (#JonathanFerrell and #RenishaMcBride), having a cellphone (#StephonClark), and playing loud music (#JordanDavis). So too have cashing a check (#YvonneSmallwood) and taking out a wallet (#AmadouDiallo).

We have also seen that the assumptions made by white people put Black people at risk of death when they sell CD’s (#AltonSterling), sleep (#AiyanaJones), walk from the corner store (#MikeBrown) play cops and robbers (#TamirRice), go to church (#Charleston9), or walk home with Skittles (#TrayvonMartin).

It is dangerous for a Black person to be at his own bachelor party (#SeanBell), to party on New Year’s (#OscarGrant), to leave a party to get to safety (#JordanEdwards) or decorate for a party (#ClaudeReese). To lawfully carry a weapon (#PhilandoCastile), and to shop at Walmart (#JohnCrawford), and to be a 10yr old walking with his grandfather (#CliffordGlover).

When police confront Black people, they are at serious risk to their life when they have a car break down on a public road or have a disabled vehicle (#CoreyJones and #TerrenceCrutcher), get a normal traffic ticket  (#SandraBland), or if they read a book in their own car (#KeithScott).

Police officers use excessive and lethal force when confronted with Black men that run (#WalterScott), ask a cop a question (#RandyEvans), or are in custody (#FreddieGray) or breathe (#EricGarner).

The list goes on, and it should feel overwhelming. The extent of the violence, and the context of the activities that put these individuals at risk, make any claim Amy Cooper has to being unaware of the risk she was placing Christian Cooper in dismissible.

In response to public outcry, Amy Cooper claims to have been scared, not motivated by race and not to have intended any harm come to Christian Cooper. However, both in our moral and legal evaluations of actions, whether or not someone intended the harm or potential harm is not the only standard we have.

Consider the following set of examples. Imagine I have friends over for a bonfire and am excited to use a new purchase “Rainbow Fire.” These packets, when added to a fire, make the flames appear in multiple colors—very exciting. However, because the packets involve chemicals in order to achieve the colorful result, they in fact cause harm to those in close proximity to the fire. In effect, my adding the packets to the fire causes harm to my friends. Our moral (and, roughly, legal) evaluation of my adding the packets to the fire is more nuanced than the simple judgment of whether or not I intended, or aimed at, causing them harm by adding the packets. Though in some scenario, I could have intended to harm my friends (the packets as part of some plot), moral and legal evaluations go beyond those cases.

Even if I wasn’t harming intentionally, I still was engaging in behaving that DID cause harm. So, consider the cases where there is a given risk that these chemical packets cause harm to my friends. We could think that it is a risk I should be aware of. Packets that make fires colorful, after all, are pretty likely to be full of chemicals, and if I didn’t check the packets, I was unaware of dangers I should have attended to. We call this “negligence” in law, and in the moral domain my friends would be pretty likely to be upset that I caused them harm by not attending to reasonable risks.

A step up from negligence is being aware of risks, but disregarding them. So say I read the packet but decided to take the risk and toss in the packets, resulting in the harm to my friends. Disregarding risks is behaving “recklessly,” and again, my friends here likely will have moral grounds to blame me, and the law distinguishes recklessness in many classes of crimes.

If I know that the packets will harm you (it’s a guarantee, not just a degree of likelihood), this goes beyond assessing risk or not being aware of it. Acting knowingly is just short of intentionally, because though I might not be plotting your lung damage and was aiming at something else, I was aware that the lung damage was going to be a result of my behavior, not merely a risk disregarded, as in the reckless behavior. This is a level of mental engagement that we take more seriously morally and legally.

So, even if we take seriously Amy Cooper’s denial of intentionally causing harm, we still have material from moral and legal assessment to evaluate her responsibility. She put Christian Cooper at risk, which is morally and legally problematic no matter her mental state. And, unlike in my fire example above, seems clearly to have done so with racist motives, which we should be able to capture in our legal framework somehow.

In the end, we need a framework to capture the abuse of power used here, and the violent context that Amy Cooper attempted to throw Christian Cooper into on the 25th of May. These are some suggestions of standards that could be used. The mental state, behavior, and power structure that harnesses the racial targeting are all relevant to the legal evaluation of Amy Cooper’s actions, and this can give us a further framework to evaluate the particular features of the racist harms in other violent behaviors being recorded every week.

 

1 We can note that often with false report violations, there can be civil suits filed. Civil suits, in contrast to criminal suits, are between citizens instead of between a citizen and the state. They focus on the damage one citizen caused another, rather than crimes (such as assault, theft, trespassing) that the state has determined its own authority to be justified. Civil cases include emotional distress, defamation, etc., and a successful result is typically financial restitution. Civil cases are very difficult with potential harms, or exposure to risk, and so aren’t apt for this scenario.

Meredith is an Assistant Professor at the University of Wisconsin, Whitewater. She earned her PhD at the University of California, Riverside, with a research focus in Philosophy of Action and Practical Reasoning and continues to explore the relationship between reason and value. Her current research consists of investigating modes of agential endorsement: how an agent's understanding of what is good, what is reasonable, what she desires, and who she is, informs what she does. Meredith is also committed to public philosophy and applied ethics; in particular, she is invested in illuminating debates in biomedical ethics, ethics of technology, and philosophy of law. Her website can be found at: https://mermcfadden.wixsite.com/philosopher.