California's de-arrest law -- which criminalizes what it codified, until 2015, as "felony lynching" -- emerged in 1933 to strengthen law enforcement in the aftermath of the beating of a San Jose sheriff and his deputies and the lynching of two white men. Following the double lynching, the California Legislature passed an anti-lynching law that classified the "taking by means of a riot of another person from the lawful custody of a peace officer" as a felony punishable by up to four years in prison.
The anti-lynching legislation was not created to defend and protect Black lives from white mob violence. It resulted from the efforts of a reformist movement to secure anti-lynching legislation on the grounds that extrajudicial violence was a threat to law and order rather than to the rights of Black people to safety and security.
Eighty-three years later, California prosecutors are mobilizing the obscure law to criminalize Black activists like Black Lives Matter (BLM) Pasadena organizer Jasmine Richards, who goes by the name Jasmine Abdullah. Abdullah was convicted on June 2, 2016, for removing a detainee from police custody while calling for justice in the 2012 police murder of Kendrec McDade.
Journalists, activists and legal advocates are arguing that the use of the 1933 anti-lynching statute against Abdullah is a cruel irony and a perversion of the law. While it is true that Los Angeles prosecutors have in recent years begun to mobilize California's anti-lynching law to criminalize activists and to cripple BLM and other revolutionary movements across the state, much of the criticism of Abdullah's prosecution and conviction has drawn on a caricatured understanding of US lynching law and the state anti-lynching laws that legislators begrudgingly passed (and most often failed to enforce) throughout the 20th century.
Kendrec McDade ¡Presente!
On August 29, 2015, Abdullah was with supporters in La Pintoresca Park in Pasadena when police began arresting a young woman in the crowd. When BLM members and supporters jumped to the woman's defense and demanded the officers release her, police arrested Abdullah and quickly charged her with inciting a riot, child endangerment, delaying and obstructing peace officers, and removing a person from police custody. By the time Abdullah was brought to trial in the first week of June 2016, only the de-arresting charge formerly known as lynching remained.
Abdullah became politicized after the Pasadena police killing of McDade on March 24, 2012. After participating in the BLM Freedom Ride to Ferguson, Missouri, in August 2014, Abdullah helped galvanize and direct the community's response, working closely with McDade's mother, Ayana Slaughter, and other people in Pasadena who have lost loved ones to police violence and incarceration.
Pasadena police began harassing Abdullah after she helped organize a march to mark the three-year anniversary of McDade's slaying. Police first arrested her on March 30, 2015, for "failure to appear, terrorist threats, trespassing, petty theft, assault, and evading the police." Prosecutors eventually dropped those charges.
The 1933 anti-lynching law is being used as its original authors intended: to bolster law enforcement.
Shortly before Abdullah's second arrest in August, Gov. Jerry Brown removed the word "lynching" from the California penal code. He did so under pressure from Sacramento Mayor Kevin Johnson and California State Sen. Holly Mitchell, a Los Angeles Democrat, after 20-year-old Black Sacramento activist Maile Hampton was charged on January 18, 2015, with felony lynching for attempting to pull a friend out of police custody at a protest near the Capitol. Both Johnson and Mitchell are Black.
Mitchell has said that Brown's "swift approval" of her bill to remove the word "lynching" from the penal code "speaks to its obvious truth. It's been said that strong words should be reserved for strong concepts, and 'lynching' has such a painful history for African Americans that the law should only use it for what it is -- murder by mob."
But the substance of the law remains intact. Hampton's lawyer Linda Parisi has noted that simply removing the word "lynching" from the penal code doesn't alter the law, nor the way police and prosecutors are using it today to clamp down on activists. "I think we need to use that charge, regardless of what it's called, as the legislative history intended it to be used," Parisi told The Sacramento Bee in 2015. "If someone was in lawful custody a mob should not try to release them and do them harm. The legislative intent was that people should be protected from mob violence. That's how the charge should be used regardless of the name we give it."
Mitchell and Parisi obscure the fact that the 1933 anti-lynching law is being used as its original authors intended: to bolster law enforcement, and to protect the right of the state to define the boundaries of rational and legitimate violence. When Mitchell argues that we should only wield the rhetoric of lynching to refer to "murder by mob," she obfuscates the protean history of the word, which has historically meant much more than collective murder.
Lynch Law in California
The case that inspired the 1933 anti-lynching law is an important one in the history of popular extrajudicial violence. On November 26, 1933, a mob broke into the Santa Clara County Jail in San Jose, removed John Holmes and Thomas Thurmond from their jail cells and hanged the two white men from a tree in nearby St. James Park. Holmes and Thurmond had been charged with the kidnapping and murder of Brooke Hart, the son of a wealthy storeowner. After the lynching, California Gov. James Rolph Jr. triumphantly concluded that the incident was a "fine lesson to the whole nation.... There will be less kidnapping now.... I don't think they will arrest anyone for the lynching. They made a good job of it. If anyone is arrested for the good job, I'll pardon them all." Rolph's declaration was grounded in the bravado and reverence for natural law that had undergirded pro-lynching rhetoric for centuries.
The term "lynch's law" had emerged during the American Revolution when Charles Lynch, a Virginia judge, condoned the use of extralegal violence to discipline British loyalists. Lynching was a punishment fit for traitors, and though it was not necessarily lethal in the late 18th century, it resembled the kind of terrorizing violence that the English ruling class had long meted out to so-called traitors across the Atlantic and on slave plantations in the British Caribbean.
The violence known as lynching in the post-revolutionary, mid-Atlantic states included tarring and feathering, whipping, burning, beheading, and hanging so-called offenders, often from trees, which were symbols of sovereignty. In the wake of the American Revolution, Virginians used the word "lynching" to describe extralegal violence that they found politically necessary and justifiable for the maintenance of social order.
In 1835, the term "lynching" began to circulate with more frequency in the wake of the hanging of a group of gamblers in Vicksburg, Mississippi. Andrew Jackson was president at the time of the Vicksburg lynching, and he was a staunch proponent of popular sovereignty: the idea that the will of the people can justifiably override, with violence, the laws of the state. Jackson's support of popular violence importantly hinged on a racialized construction of "the people"; anyone engaging in popular violence who was not white, economically privileged nor acting in the interests of the status quo was seen as a threat to social order. In the 1850s, the San Francisco Vigilance Committee drew on Jackson's ideology of popular sovereignty to argue that vigilante justice was pursued not by mobs, but by "the people, in the highest sense of the term."
Indeed, California has a unique place in the history of US lynch law. After the Mexican-American War, lynching became synonymous with the genocidal "frontier justice" that proved crucial to the materialization of white rule. Thousands of Native Americans and Latinos were lynched as a condition of the territory's incorporation into the Union. In contrast to the popular image of the American West as a lawless frontier, those areas with the most law enforcement -- constables, sheriffs, justices of the peace -- had the highest incidents of summary executions, vigilance committees and lynch mobs. Ken Gonzales-Day's important investigative history of California lynchings has revealed that extrajudicial violence accompanied formal disfranchisement efforts like the Foreign Miner's Tax of 1851 and Anti-Vagrancy Act of 1855. These acts constructed Latinos as foreign threats to white rule in California. Twenty years later, when white supremacists across the South resorted to violence to regain power in the wake of the Civil War, lynch mobs in California also attacked Chinese laborers across the state. In Los Angeles, the Chinese massacre of 1871 left 17 Chinese people dead.
The widespread use of vigilante "justice" across California legitimized, both rhetorically and materially, the use of extralegal violence against abolitionists and free and enslaved Black people across the country in the years leading up to the Civil War. In the era of revolutionary abolition, slave owners began using the word "lynching" to describe the punishment and execution of slaves. The arguments furnished to excuse these lynchings foreshadowed the arguments that would be made to excuse lynchings in the post-Civil War period.
During the 1870s, when the press called a killing by a crowd a lynching, it was meant to justify it, whereas calling it a murder or an outrage condemned it as unjust. Like mid-Atlantic revolutionaries, white settlers in California and Southern slave owners, journalists fashioned narratives about lynching as a form of popular sovereignty that made the violence seem acceptable, necessary and just.
Throughout Reconstruction -- when Black people held political office, established the first public schools in the South and organized alongside white farmers for labor justice -- extralegal anti-Black terrorism spread like wildfire. The Ku Klux Klan, formed in Pulaski, Tennessee, in 1865, claimed that its members' campaigns of nighttime domestic raids, rapes, beatings and murders were legitimate because they were incidents of popular violence that represented the will of disfranchised former elites.
In an article in The New York Globe in 1883, the Black militant journalist T. Thomas Fortune blasted "lynch-law," arguing that white terror should be called lynching not because it was just but because it was a form of structural violence. Fortune and Frederick Douglass began using the word to communicate to people that anti-Black massacres in the South had the tacit approval of people across the nation and were a supplement to formal law rather than its opposite. It was at this point that lynching became synonymous with anti-Black violence.
In the following decade, Ida B. Wells emerged as the most forceful anti-lynching activist. In her political pamphlets, news articles and speeches, Wells employed the word "lynching" to describe the actions of racist mobs in cahoots with law enforcement to maintain white supremacy. In opposition to the Jacksonian definition of lynching as a rational form of popular violence, Wells took great pains to demonstrate that lynching was a politically, economically and racially motivated form of mass violence that undermined American pretensions to civilization.
After the National Association for the Advancement of Colored People (NAACP) formed in 1909 to organize against lynching, its members highlighted Wells' rhetorical focus on lynch mobs' savagery and argued that this barbarism was a disgrace to democracy and a threat to the rule of law. The tactic was twofold; activists took this line in order to further Wells' argument that lynching was an American rather than a Southern form of injustice that required national action, and to appease moderates who did not want to offend or disrupt the Southern white supremacist status quo.
As the NAACP lobbied, under the leadership of James Weldon Johnson during the 1920s and Walter White during the 1930s, for federal anti-lynching legislation, its members appealed to white liberals and moderates across the country by highlighting lynching's threat to established "law and order." Along with Southern liberals in the Association of Southern Women for the Prevention of Lynching (ASWPL), the NAACP downplayed the impact of lynching on Black people in order to underscore what they believed would galvanize the broadest anti-lynching base. The official declaration of the Georgia chapter of the ASWLP stated: "The real victim in the crime of lynching, we affirm, is not the person done to death, but constituted and regularly established government."
San Jose, 1933
When the San Jose mob lynched Holmes and Thurmond, its members drew upon the 18th-century definition of lynching as a colorblind form of popular justice to defend its illegal actions. And anti-lynching organizers responded by seizing the enormous press coverage of the lynching to forward their colorblind definition of lynching as a threat to the law. White moderates like New York Rep. Hamilton Fish responded to the San Jose lynching by describing it as a "rape of justice, liberty, civil rights, equal rights, human rights, human lives, and the Constitution itself."
The 1933 lynching of Holmes and Thurmond in San Jose provided the litigationist wing of the reformist anti-lynching movement with considerable leverage in its members' attempts to pass state anti-lynching laws. Southern politicians had previously blocked the passage of the Dyer Anti-Lynching Bill, which had pressed for a federal anti-lynching law that would hold lynch mobs and law enforcement officers financially, politically and legally responsible for participating in or condoning lynching. In response, Southern liberals responded by emphasizing the need for local anti-lynching laws that would not threaten states' rights.
California Governor Rolph responded to criticism of his support of the double lynching by enacting a California anti-lynching law that criminalized the "seizure from law enforcement officers of a detained person in the interests of starting a riot." The law made no reference to other definitions of lynching that underscored the violence's relationship to white supremacy and "community" control.
People v. Anthony J.
In California, the charge of felony lynching lay practically dormant until 1971. That year, the California First District Court of Appeal concluded, in its decision in People v. Anthony J., "that a person who takes part in a riot leading to his escape from custody can be convicted of his own lynching." The case expanded the 1933 codification of lynching to include a riot of two or more people that leads to their own escape. This 1971 amendment to the penal code is what now allows police and prosecutors to criminalize, as felons, activists who resist arrest.
The charge ups the misdemeanor crime of rioting to a felony offense. As law professor Jody David Armour notes, "DAs have dusted off an old law and found that it's useful to go after protesters that they want to charge with and convict for a felony rather than a misdemeanor."
Activists were charged with felony lynching in 1986 at the University of California, San Diego, in 1999 at an anti-fur demonstration in San Francisco, at an anti-G8 protest in San Francisco in 2005, and, more recently, at Occupy protests in 2011 and 2012. In 2014, in Murrieta, California, the law was used against Janet Mathieson, who was arrested with four other activists for supporting migrant detainees during an anti-immigration protest. Though none of these charges resulted in convictions, they normalized the deployment of the law against protesters.
On June 7, 2016, Judge Elaine Lu sentenced Abdullah to 90 days in jail, with 18 days served, and three years of probation. Abdullah, a working-class Black and queer political organizer, is the first person in California -- and, indeed, any state in the nation -- to be convicted of the felony offense of removing someone from police custody.
Abdullah joins other Black activists like Michael Zinzun (who founded the Coalition Against Police Abuse in the 1970s) who have been violently targeted by Pasadena police in retaliation for their visionary resistance to anti-Black state violence.
Abdullah's lawyer and comrades in Black Lives Matter have rightly asserted that Abdullah's arrests and conviction are politically motivated and that she is the first political prisoner of the BLM movement. Abdullah's lawyer, Nana Gyamfi, has taken the charge one step further, proclaiming that the "prosecution of Jasmine [Abdullah] Richards is an attempted lynching of Jasmine and, by extension, the Movement for Black Lives in Pasadena, with the Pasadena District Attorney's Office and Pasadena Police Department as the lynch mob."
Gyamfi is recuperating the rhetoric of lynching from the state. Her assertion that Pasadena police and the District Attorney's Office comprise a lynch mob calls to mind the rhetoric used by the International Labor Defense in the 1930s during its defense campaign of the Scottsboro 9. Members of the Communist Party USA's legal defense wing theorized the trumped-up charges, sham trial and death sentence of the Scottsboro 9 as a "legal lynching" -- as a form of criminal justice brutality that resulted from legal procedure. The term emphasizes, like earlier Black radical definitions of lynching as state-sanctioned anti-Black violence, that merely bringing the violence under the control of the judicial system does not make it just. Like past victims of legal lynchings, Abdullah is at the center of a historic anti-lynching defense campaign.
Abdullah's conviction is a painful reminder of the danger of legal reforms that seek to quell violence -- particularly historically state-sanctioned violence -- by putting more money and power into law enforcement initiatives.
While the Los Angeles District Attorney's Office is no longer wielding the rhetorical and emotional power of the word "lynching" against Black radicals in California, it is using the 1933 law's defense of police authority to neutralize a powerful movement for Black freedom. We can't let the District Attorney's Office, under the leadership of Jackie Lacey, get away with that.
It is crucial that we not shy away from defending each other and ourselves when our lives are threatened. As BLM organizers observe, "removing a Black person from police custody can be a life-saving action." This statement has been borne out by history. The revolutionary movement to abolish slavery in the United States would never have succeeded without the insurrectionary violence of anti-slavery activists, who employed de-arrest tactics in their efforts to free slaves from masters and overseers in the slave states and from bounty hunters in the North after the passage of the Fugitive Slave Law of 1850.
We must not let Abdullah's conviction deter us from our visions of freedom.