Law and order has long been enforced selectively when it...

Law and order has long been enforced selectively when it comes to peaceful protests. Credit: Getty Images/iStockphoto/champc

In recent weeks, groups of angry, armed white men gathered in multiple states to protest stay-at-home orders and business closures brought on by the coronavirus pandemic. In Michigan, neither force nor legal action met gun-toting, body-armor-clad men — standing shoulder to shoulder, many with no protective mask — who were breaking the law by violating emergency orders designed to protect public health. When asked about the armed protesters, a Michigan police spokesperson stipulated it was perfectly legal to carry firearms so long as they were openly displayed with "lawful intent."

But "lawful intent" is not assumed of all Americans. In 1967, Black Panther Party members entered the California State Capitol with rifles, shotguns and revolvers openly and legally displayed. They were there to protest a bill to outlaw such open carry of firearms; the bill was, not coincidentally, spurred by fear over Black Panthers patrolling their Oakland communities with firearms to prevent rampant police brutality.

Unlike the armed protesters in recent weeks, the Panthers were removed by state police and taken into custody. One officer assured reporters the Panthers were not under arrest and that this was a only a precautionary measure to "check them all out [...] and check out all these weapons." In reality, the Panthers were charged with a variety of offenses, including conspiracy to disrupt a legislative session. Later that year, the Mulford Act was signed into law by then-Gov. Ronald Reagan, outlawing the open carry of firearms in California and preventing further armed protest by the Panthers.

This vigorous state response reveals how notions of "law and order" are selectively enforced. Whereas armed, white protesters in 2020 were met with the calm restraint of police and the full-throated support of the sitting president, the protest and activism of minority groups like the Panthers is all too often framed as a threat to public order and quashed by political leaders and police officers alike.

Panther activism was frequently silenced with extreme force. In the dawn hours of Dec. 4, 1969, Chicago police — acting on a tip from an FBI informant — raided a West Side apartment to execute a search warrant for illegal weapons. The police entered with guns blazing, and Fred Hampton, the 21-year old chairman of the Illinois Black Panther Party, was shot dead while lying in bed next to his pregnant girlfriend. Mark Clark, another Panther, was also killed. The surviving Panthers, four seriously wounded, were charged with attempted murder, armed violence and a variety of weapons offenses.

Only after it was revealed that Chicago police fabricated evidence to support their narrative of being attacked by the Panthers were the charges dropped. And though Chicago police involved with the raid were indicted by a grand jury, all charges against them were eventually dismissed. It was not until 1983 that Hampton's estate would receive a $1.8 million dollar settlement for the violation of the Panthers' civil rights.

Just four days after Hampton was murdered, police raided the Black Panthers' headquarters in Los Angeles to serve a search warrant for illegal weapons. More than 350 police officers, including the newly formed Special Weapons and Tactics (SWAT) unit, descended on the 13 occupants of Panther headquarters. The officers fired over 5,000 rounds during the ensuing firefight. A helicopter and tank supported the assault and explosives were detonated on the roof of the building. The raid was so egregious that a jury later acquitted the accused Panthers of almost all charges brought by prosecutors, including assault with a deadly weapon and conspiracy to murder a police officer.

This pattern of state violence reflected and perpetuated the racialized fear of crime and violence that suffused the 1960s. Political leaders such as Barry Goldwater and Richard Nixon invoked the language of law and order to fan the flames of moral panic and demonize antiwar protesters and "black extremists" like the Panthers.

This rhetoric had long-term policy consequences. In 1971, Nixon's calls for increased enforcement coalesced into a bipartisan War on Drugs that would metastasize into mass incarceration over the next 30 years. On the heels of calls by Presidents Reagan and George H.W. Bush to address violent gangs and the "crack epidemic" with more enforcement, Democratic lawmakers also doubled down on law and order. At the signing of the 1994 Violent Crime Control and Law Enforcement Act, for example, President Bill Clinton invoked the law-and-order rhetoric of decades past, proclaiming, "Without responsibility, without order, without lawfulness, there is no freedom." This legislation expanded the criminal justice system to an unprecedented scale, providing $10 billion dollars for prisons and billions more to hire 100,000 new police officers across the United States.

The creation of the "1033 Program" in 1997 further expanded federal support for local police and helped turn the militarized tactics deployed against the Panthers in 1969 into daily operations across the United States. This program provided police with extraordinary access to military equipment for little or no cost, supercharging the nationwide proliferation of SWAT teams. Though created decades earlier to address high-risk hostage situations or bank robberies, these militarized police units became a standard tool in low-level drug enforcement throughout the late 1980s and 1990s. Today, these SWAT operations continue to be concentrated in poor, minority communities long targeted by law-and-order policies.

Though one would hope that such injustices were relegated to the past, our present is one in which the constitutional rights of citizens are still selectively protected and assumptions of lawful intent are not given to everyone. In 2016, hundreds gathered in Standing Rock, South Dakota, to protest the construction of the Dakota Access pipeline. The protesters were unarmed, but police responded with tear gas, rubber bullets, fire hoses and sound weapons. Over 100 protesters were arrested and hundreds more were injured. In the years since, 22 states have passed new laws to restrict and criminalize protest; several of these laws explicitly target protest around "critical infrastructure" and "pipelines."

Yet South Dakota showed decidedly more restraint during the 2014 standoff between the federal Bureau of Land Management and Cliven Bundy, a disgruntled Nevada rancher who refused to pay fines incurred after illegally grazing his cattle on federal land. After declaring a "range war," Bundy was joined by hundreds of supporters who, with guns in hand, forced bureau agents to give up their efforts to seize Bundy's cattle. Despite the assault of federal agents during the days-long standoff, the Bureau of Land Management retreated out of concern for the safety of its agents and the public. Though Bundy was eventually arrested, all charges against him were dismissed in early 2018.

These inconsistencies in the use of state violence should not be interpreted as justification for more enforcement or more severe punishment of protest writ large. We need more police restraint, more protection of peaceful protest, not less. Nonetheless, the past and present provide clear evidence that appeals to law and order are and always have been constructed and enforced strategically. Today's stay-at-home protesters, secure in their knowledge that their armed intimidation will come with little if any cost, are proof of this long tradition and its enduring hypocrisy.

Sierra-Arévalo is an incoming assistant professor of sociology at the University of Texas at Austin. His current book project explores the causes and consequences of U.S. policing structured around danger, violence, and death. This piece was written by The Washington Post.