“And if any slave resist his master, or owner, or other person, by his or her order, correcting such slave, and shall happen to be killed in such correction, it shall not be accounted felony; but the master, owner, and every such other person so giving correction, shall be free and acquit of all punishment and accusation for the same, as if such accident had never happened. And also, if any negro, mulatto, or Indian, bond or free, shall at any time, lift his or her hand, in opposition against any Christian, not being negro, mulatto, or Indian, he or she so offending, shall, for every such offence, proved by the oath of the party, receive on his or her bare back, thirty lashes, well laid on; cognizable by a justice of the peace for that county wherein such offence shall be committed.” — The Casual Killing Act of 1669
If you grasp that modern police forces are the byproduct of slave patrols, it shouldn’t be that hard to conceive that some of the laws protecting officers and ordinary citizens in America originated during slave times. It has mostly been illegal to kill enslaved people, but in practice it was okay. Black people couldn’t testify in court proceedings, they couldn’t act as jurors, and no case could be brought unless sponsored by a white person. It wasn’t legal to just kill Black people, but it was okay.
Even that wasn’t enough however, the state of Virginia codified it into law that it was indeed okay to kill Black people. They appropriately named the new law, The Casual Killing Act of 1669. Saying the quiet part out loud that you didn’t even have to put a lot of thought into it. Just kill them and it will be alright.
What did Black people have to do in 1669 to justify their death? Resisting their master, owner, or any person attempting to correct them was sufficient. That sounds very familiar. How many times have you heard, not in the 1660s but in the 2020s that “he/she shouldn’t have resisted?” If you resist a white person (or their representative that may be any other color) it’s okay to kill them. In 1669 it meant there was no criminal penalty. In the 2020s, a criminal penalty is highly unlikely but still possible. The prospect of a civil penalty is non-existent because of Qualified Immunity which say police officers cannot be sued for breaking the law and rules covering their conduct because that’s the way the courts and Congress want it.
The 1669 law said if any Black person of any percentage or Native American lifts their hand against any white person (they specified Christian so it might be okay to strike a heathen), they shall receive thirty lashes on their back.
I am surprised by little in American history but this law took me aback. It was passed at a time when Virginia needed settlers of any color to help with colonization. Four years earlier they passed Partus Sequitur Ventrem which made the children of enslaved women slaves as well. Part of the goal of that law was to prevent Black men from pairing sexually with white women. Some of that sentiment crept into the Casual Killing law which was extended to include conduct with white women, whether or not consensual. None of that is surprising that it occurred, it’s only significant that Virginia put it in writing.
“The doctrine of qualified immunity protects state and local officials, including law enforcement officers, from individual liability unless the official violated a clearly established constitutional right.”
Qualified immunity is not absolute, it just allows for enough excuses of ignoring the rights of others, disproportionately Black, as to make a successful lawsuit almost impossible. The same excuses often prevail during attempts at criminal prosecution. Qualified immunity is granted it can’t be proven that a reasonable person would be aware of rules against their behavior, or if they were in fear for their life. That translates to the ubiquitous hand reaching into a belt or a fear of some activity that might take place with no evidence that it either had or would.
I bring up the Casual Killing Law of 1669, not because it still exists in the exact form today, but because we have not only learned nothing from history, but we are still repeating it.
This post was previously published on MEDIUM.COM.
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