The controversy over NFL Players taking a knee during the National Anthem to protest the deaths of young Black men at the hands of police departments, in cities large and small across the United States, reminded me of something.
In the mid-1990s I worked my way through graduate school, among other things, by working as a security guard. One of the things I did as part of my job was to train new people on some of the sites I worked at. One of those trainees was another graduate student, who was a retired Lieutenant in the police department of a large local city.
Like many former cops he was intelligent and voluble. It was a few years after the Rodney King incident and the LA Riots. We began talking about this between patrols of the site, an industrial plant.
He said he started as a cop in the summer of 1969, then 26 or 27 year prior to our conversation.
He told me that at the time he started, the news was full of pictures of British Soldiers deployed in Belfast due to the violent collapse of the initially-peaceful Civil Rights Movement in Ulster. The Brits were brought in to protect the Catholic minority, but soon became deeply resented by them because the Brits restricted them to ensure peace. Although he was Italian, not Irish, he had followed the story because it was featured on the 3 then-existing network news broadcasts.
His initial assignment as a rookie was to a very poor, predominantly Black section of the City as a beat cop. He soon noticed that the local people disliked and distrusted him as a cop. He understood it, when he or any other cop got involved in anything on those streets, things got worse for people for whom life was fairly dire in the first instance. (Something a professor I had in law school, who had spent years as a DA in New York City, also commented upon in almost the same words.)
However, while he understood this intellectually, emotionally, when you are around people who fear and hate you, you find yourself fearing and hating them in return. In time, he began to identify with the British Soldiers he saw patrolling the Fall Road in Belfast every night at 6:30 p.m. on Walter Cronkite or the Huntley-Brinkley Report.
The law professor who had been a DA had a slightly more intellectual explanation. She said police agencies protect lives and property by restricting freedom and, if you have less property, you may really resent the imposition on your freedom.
In the summer of 2014, this issue again (admitting that, if you live in certain places or come from certain ethnic origins, it is never NOT there) came to the fore with the death of 18 year old Michael Brown, who had been shot by a Fergusson, MO police officer.
Subsequent investigation indicated that Brown had tried to grab the officer’s gun despite being repeatedly advised not to do so. In that circumstance, the use of deadly force was justified.
But, however justified, this use of deadly force was tragic.
Brown did something that was both dangerous and unjustified. However, anyone who has been responsible for 18 year olds (or has been an 18 year old man) knows that neither kind of behavior is uncommon at that age.
As a result, Michael Brown is dead. Michael Brown’s family has an empty chair at the dining table in perpetuity. The officer who shot him, by all accounts a capable and honest man, where neither case was necessarily the norm at his police agency, will live with having taken Brown’s life for the rest of his life. As Hemingway said of war, “Never think that war, no matter how necessary, nor how justified, is not a crime.”
I vaguely remember that Antonin Scalia, of all people, wrote in one of his Supreme Court opinions something like, “As Gilbert & Sullivan wrote ‘A policeman’s lot is not a happy one,’ outside of a police state.” Police Officers have a difficult job: high stress; long hours; and, not infrequently, danger. The vast majority of them do what they do honorably and well. Jack Webb, an actor, writer and producer who worked with the LA PD throughout his career, wrote a monologue in one of his programs that rings pretty true about that majority.
However, it is worth asking how much the phenomenon that retired police lieutenant and I talked about so long ago factors into the numerous incidents where deadly force is used against young Black and Hispanic men . . . and what we can do about that.
For Colin Kaepernick, an NFL Quarterback ("QB") with a somewhat uneven career, that "what" became taking a knee during the national anthem.
Some have said this might be a way of keeping himself relevant despite his uneven career as a QB. Others point out that Kaepernick is know to be a bright and serious man and, as a bi-racial man, raised by a White family, these issues strike home in a very powerful and personal way. During the 2015-'16 Season, Kaepernick's protest spread.
Some commentators have said, correctly, that Kaepernick has no 1st Amendment rights against his Team or the NFL, that one can only assert 1st Amendment rights against a State Actor (a Federal, State or Local Government).
However, while it may NOT be a Constitutional issue as to Kaepernick, it may be a Federal Civil Rights Law issue and even possibly a Federal Antitrust Law issue.
The NFL has become a platform for causes, such as players wearing pink to promote breast cancer awareness during October. If other players have done things or worn things as symbolic speech without general League approval, as Kaepernick has, then the NFL may face a Federal Employment Discrimination claim for failing to sign Kaepernick, a member of a protected class who engaged in symbolic speech regarding the interests of that protected class, where other NFL players were allowed to engage in Symbolic Speech over other issues without adverse consequences.
Further, if Kaepernick had not been signed because of a consensus reached by the owners, they could be subject to anti-trust claims. (Professional Football, unlike Major League Baseball, is subject to the Federal Antitrust Laws. Radovich v. National Football League, 352 U.S. 445 .)
There is the counterargument that Kaepernick is not signed because he is an inconsistent player who is now past his prime. However, that is a question of fact, which means the issue likely can't be resolved on a motion for summary judgment (especially a 12(b)(6) Motion for Summary Judgment for Failing to State a Claim), without substantial (and expensive) discovery and substantial (and expensive) expert opinion.
Further, for the players who took a knee after Pres. Trump made his comments, there is at least an argument that there is state action, which would implicate the players right to free speech.