Introduction
Citizen, dashcam and bodycam recordings of police brutality and lethal use of force comprise a new media terrain of state violence. In 2015, a bystander recorded a police officer gun down Walter Scott. That same year, a patrol car dashcam and body microphone recorded a state trooper arrest Sandra Bland. She was found dead in a Waller County jail cell three days after being taken into custody.
Recordings like these are destined for use and consumption by publics, journalists, and legal actors such as prosecutors, police administration, juries and activists in an investigation and, maybe, eventually, a civil or criminal trial. Political organizing, public investigations and criminal and civil adjudication all endow these recordings with evidentiary meaning.
This essay explores the historical record of the violent enforcement of law against black life, beyond the self-evident nature of what these recordings legally prove. It dwells in “the ongoing destruction of the ongoing production of (a) (black) performance, which is what I am, which is what you are or could be if you can listen while you look.”1
Res Nulla Loquitur
Holding this hearing is all there is. Endless legis, never arriving at an act. Legislation is forever deferred because the whereas repeats, never to address the question of Bland’s “here”.
Hearing is, eres, are, our: a litany of whereas’s deferring enactment, the preamble of the never-to-be ratified George Floyd Justice in Policing Act.
There are no acts for these recordings. Figures stream. Uncut, medial proximity reveals an unlit gap. From this ledge, we jump into a virtual intimacy. “Believe your eyes,” see only what you first saw, even if what was first was always, sur-repetitiously, in media res, being recorded, recording (for) conviction.
I went to American Monument, and played some records. Its mo(nu)mentum threw every one, thing, note off. The point of the needle, drawing a centripetally gathering line, bumped along toward some non-distant, non-immediate, non-placeable center of a record so slick its grooves play a music we don’t know we hear until we do.
Eighteen arms, dragging, circumlocuted an offering that became these loops.
They played: “But I’m still here…” looking at these renditions of enforcement.
“So call me back” using these destroyed conditions of performativity, with the rubble left in the wake of these regimes of self and evidence.
Make something when the swarm of words, letters, sounds, the flock of bodies and papers, the flight of sense and thought, start to land and hover where they will.
Sign this nonperforming will. Listening while looking at: everyone looking, some self looking while reading, a non-self looking while writing. Place this desire.
Inconsist by making whatever self a place of hearing. Wait. Hear, a ringing ringing. Truth floats up from the murmur of history.
Out above the murs of law and justice, this ringing drafts on, in the slipstream of the unconscious. Submit to (a)murs, Lacan says.2
Pluck these radioscopic bits from the air, and throw them back at the mighty law, whose bulldozing, wordsmithing, incontrovertible scribe leaves nothing to be asked, and nothing to be argued. They mark a Real no-thing, a rebellion of ten thousand mouths filling the mis-n’en-scene3 of law with alyrical notes.
Res nulla loquitur: it is a written aside, as a procedural oversight, on the law’s underside, that proves the inkblock always runs black.
A trace breath is left in the running line. Even its end, its disappearance in its own finite fluidity, is part of this trace.
Ends do not justify origins, and so for any origin to be just, they must hear a mysticism in and against the mythical origins of law. Hear until the non-scene of mythical origin overtakes the not-enough of law’s origin. Until the lids of the eyes sound words, and the lips of the mouth visualize objects. Until those mystical non(self)substantiating presences become more real than any mythological narrative or legal reform could ever promise to become.
Listen, like a transubstantial realist, to that Zong!, song, psalm thing.4
Res nulla loquitur.
Judging police judgement
The Fourth Amendment tells us to be polite police the Garner way: enforcement-lite, a chimera, a horror, an other
wise
limit
less
law on
Black
life
The amended theorems posit manners to mind: “there can be no question”
“
his own life need not be elaborated .” factum neuter past participle facere do reality and truth circum locute occurrence and its didness.
Facts perform déjugement. Not non. Certified absence, the word of laws “
of origin.”
Repeat negation: one, two, three and four: E. Garner, no question, E. Garner, need not.
Repeat read repeat revise verneinung dénégation denegation misnegation. In any case, vicious judiciousness: intellectual affirmation of negation only ever negates negation. Off the hook, on the hook, the prefixes float.
Facts of blackness denegate black life. Say it again. Black life is not an “is” that is repressed by law, ipso facto, blackness marks (a)tonality confounding the occasion for question and elaboration. Another time.
“Zong!
#
”:
Questioning the question-that’s-not-a-question
The unfortunate nature of this particular case…
The unthinkable night blanketing this precious study…
…because the suspected burglar refused to heed this command.
…why the running figure quieted to heed some command…
Where there are rights and a harm committed by a state agent, there are questions the courts must hear, elaborate on and resolve in order to provide remedies.
Where there are bodies and a promise broken by a flashy badge, there are questions we all hear, elaborating on and resolving in order to provide truth.
What kind of life is this life?
What form as sound projects that life?
Supersessive blackness
1986: Tennessee v. Garner. The sentence is a grammatical technology that positions the dead as cause of death. It is an aesthetic performance of the law’s engagement with a “totality of circumstances."6 Totality, by the end of the sentence, is constructed through determinations of facts from various forms of documented evidence colored by a more fundamental question about how the law is to regard black life.
Protocols of determining what Justice O’Connor refers to as the “distinctive manner” of black life, and the police officer Blane Salamoni’s bullets and words, “stupid motherfucker,” meet in the totality of law’s performative dimension.
O’Connor has Alton Sterling’s blood on her rationalizing hands, which discovered an endless source within legal reason to reverse the question of causation. Constitute and define black subjectivity as self-induced risk, as willed exposure, and the law will always be able to offer justification for use of lethal force. It doesn’t matter what kind of evidence is collected to argue a civil rights violation because judgement is no longer the aim. The aim, instead, is the business of extracting this curious raw material O’Connor described as “life…exposed to risk”.7
Fourth Amendment jurisprudence is a form of manifest destiny, turning black life into black selfhood. It is a colonization of life which regards the mere condition of living as supersessive cause for using lethal force.
With law, we are in the morass of how blackness matters grammatically. The grammar of legal sentencing structures life leading up to the fatal moment adjectivally so life can be read against the very constitutional claims made on behalf of victims of state violence.
Supersession, supplantation, displacement, replacement become the technê of O’Connor’s Fourth Amendment discovery.
2016. Johnson v. City of Philadelphia. The Third Circuit Court of Appeals decided that a police officer was not civilly liable for violating Kenyado Newsuan’s Fourth Amendment right if there was a “superseding cause” that broke the chain of “proximate causation”8 between the officer’s conduct and the suspect’s death.
“Superseding cause” is the way the law looks at black life as supernatural, and as such, black life itself can always offer either a naturalized or privatized explanation for killing a black person, no matter who pulled the trigger.
Death, then, becomes self-defeating evidence because black selfhood substitutes in for any other cause of death, including the fact that someone else, a state agent, pulled the trigger on their gun. Blackness appears in law as a form of living that has a supersessive relation to seeking a remedy for death.
J.L. Austin could only unconsciously register the murderousness of speech when discussing the “perlocutionary act…[for which] there is no restriction to the minimum physical act at all”.9 Perlocutionary acts include the excesses, mistakes, “misfires” of speech in a field of unintended effects or influence on an interlocutor.
Referring to a finger on the trigger of a gun to suggest that speech and physics share the same question of causation as influence, Austin remarks that linguistic and physical causation are in pari materia. The principle of in pari materia10, meaning ‘of the same matter’ or ‘on the same subject’, is used in statutory interpretation to require that when two laws refer to the same matter, they must be analyzed together.
We are always in this lethal perlocutionary sphere of influence.
Listening while we look at the law looking at itself, we hear the ongoingness of an ongoing exposure to “(a) (black) performance”, to some “passionate utterance”11 that is the condition of possibility for the very task of judgment and sentencing.
Bewilderment is the only passion capable of inviting the disorders of desire in this extractive legal landscape, where living is a superseding cause that defeats the ability to construct a proximate chain of causation from racial profiling, to arrest, to detention, and finally, death.
There is only Bland’s repeating incomprehension of things “turned into all this.”
Law’s barking
The 2015 Final Report from President Obama’s Task Force on 21st Century Policing pinpoints the problem of “offensive or harsh language [which] can escalate a minor situation”.12
But the recording of Bland’s arrest shows us something much more complex about racial profiling. It requires some moment when black life is ushered out of the frame and into the void.13 She is out of sight as we hear the officer’s erratic commands, the majority of which are made off screen. It is as if their heaving is what keeps Bland expelled from the visible.
The actuality of policing takes place outside any given frame, and its authority essentially depends on the irreducibility of the voice of law to social space. We see racial profiling in the stillness of the visual scene, but the closeness of the audio takes us outside of the frame with a certain fantasia of the law’s relentless barking. The immediate distress produced by this evidence is precisely the feeling of needing it to shut up.
Here is where law’s jurisdiction transcends the territoriality of perception and becomes pure diction in the two words “stop” and “it”, over and over again.
Diction emphasizes the dependence of legal meaning on voice, such that law and voice become one and the same, juris/diction. And the geoAVspatial positioning of enforcement indexes the not-yet and never-to-be compliant.
Index, Chain, Score
The performance of juris/diction reverberates beyond what is doctrinally comprehensible under the classic common law principle, res ipsa loquitur.
Translated from the Latin as “the thing speaks for itself,” the Third Restatement of Torts defines the principle as “circumstantial evidence of a quite distinctive form” that can be used when there is no direct and specific evidence that a defendant’s negligent act caused the injury at issue before a court. Circumstantiality and generality are usually insufficient modes of evidence to transform social reality into a legally actionable claim for specific injuries. However, res ipsa loquitur allows a type of general harm into the law’s always limited jurisdiction.
Res ipsa loquitur as a rule of evidence, and tort law’s design to remedy harms resulting from negligence, come together to provide a powerful portal for examining how and why the loss of black life is not a harm that “speaks for itself.”
If the evidentiary exhibition of lethal arrest documents black life as the only form of life which can be both cause and effect of its own demise, then res nulla loquitur is the principle unifying every necessary denegation we find with each turn of doctrinal analysis and rhetorical performance of fact and rule.
“The thing speaks for nobody,” or “nobody’s thing speaks,” res nulla loquitur registers a synesthesia of violence that cannot ever be completely and finally ordered even into the logic of res ipsa loquitur.
Res nulla loquitur is a rule of evidence that calls not for legal remedy, but for some other law beyond the force of law and grammar. It is the law of that which will always have been annulled of any reference to a or some self that could come before the law.
Against the clarity and conviction that harm calls for remedy, res nulla loquitur is to enter the foggy place of evidentiary interpretation requiring a different forum of hearing. Here, we encounter a formally, if bizarrely, encoded audio-nomos across a profoundly overdetermined, perjurious terrain where lethal arrest that will have been caused by life always, self-evidently, exposed, and thus, life with no self.
The thing speaks…And when it does, hearing with bleary-eyed clarity, blackness unseats the self-evident in and of every recourse to the copular verb “to be.” With Bland’s question, “how did failing to signal turn into all this?” we look over the precipice of self-evidentiary rhetorics wherever we find them and tumble down so many signifying chains of justice.
What we look at here, while listening, is the “Index of Counts” that opens the 3rd Amended Complaint filed by Sandra Bland’s mother, Geneva Reed-Veal.
- Count I - Brian Encinia – 42 U.S.C. § 1983 Claim
- Count II - Elsa Magnus – 42 U.S.C. § 1983 Claim
- Count III - Elsa Magnus – Negligence Claim
- Count IV - Oscar Prudente - 42 U.S.C. § 1983 Claim
- Count V - Oscar Prudente – Negligence Claim
- Count VI- Waller County – Negligence Claim
- Count VII – Waller County - §1983 and 1988/Monnell [sic] Policy Claim
- Count XVIII - Rafael Zuniga – 42 U.S.C. § 1983
- Count IX – Rafael Zuniga – Negligence Claim
- Count X - Michael Sergis – 42 U.S.C. § 1983
- Count XI – Michael Sergis – Negligence Claim
- Count XII – Dormic Smith – 42 U.S.C. § 1983
- Count XIII – Dormic Smith – Negligence Claim
- Count XIV - Cynthia Whidden – 42 U.S.C. § 1983
- Count XV – Cynthia Whidden – Negligence Claim
- Count XVI - Marc Langdon – 42 U.S.C. § 1983
- Count XVII – Marc Langdon – Negligence Claim
- Count XVIII - Lt. Sherry Rochen – 42 U.S.C. § 1983
- Count XIX – Lt. Sherry Rochen – Negligence Claim
- Count XX - Asst. Chief Lanny Thibodeaux – 42 U.S.C. § 1983
- Count XXI – Asst. Chief Lanny Thibodeaux – Negligence Claim
- Count XXII - Matthew Mills – 42 U.S.C. § 1983
- Count XXIII – Matthew Mills – Negligence Claim
- Count XXIV – Marianne Williams – 42 U.S.C. § 1983
- Count XXV – Marianne Williams – Negligence Claim
- Count XXVI – Randy Lewis – 42 U.S.C. § 1983
- Count XXVII – Randy Lewis – Negligence Claim
Read, while listening, this chain of civil causes of action.
42 U.S.C. § 1983 defines the elements of what constitutes a “civil action for deprivation of rights”.
Black’s Law Dictionary defines negligence as “the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do. Or doing something which a prudent and reasonable man would nor do.”
Interpret, while listening, the rhythm of a score representing both the overtone of deprivation and an undertone of failed care.
Bland’s mother’s signifying chain of justice links tort law’s realm of social negligence with the world of constitutional rights. Tort law scores the insufficiency of civil rights remedies with the force of a heteroglossia of social interests drawn into articulating “negligence,” or the failure to exercise a reasonable expectation of care.
Index, chain, score.
Res nulla loquitur articulates a Monell formula of abolitionist civil rights law that retreats from the very idea and constitution of municipal safety. This formula accepts that both direct and circumstantial evidence of lethal use of force will not deliver justice. Instead, it symbolizes an evacuated ipsa, on behalf of which such evidence is thought to speak, and continually interprets to the brink, that which evidence cannot bear. It allows us a way to remember that whatever is or seems self-evident is precisely not where we should pay our attention.
Apophatic murmur
In a description of the cell where Bland was found dead, the state’s investigation includes a citation to what might have been the last words she read.
The shelf/table attached to the south wall and to the west of this bunk contained two books, one titled ‘101 Ways to Find God’s Purpose in Your Life’ and the other was titled ‘God’s Word’, or a Bible. The Bible was opened to pages 428-429, Psalms 119-122. Investigator PARINELLO informed Ranger ELLISON that he had already moved the two books while looking for any handwritten notes left by BLAND. The Bible had been found open on the aforementioned pages and the other book was closed.15
Psalm 119 is a curious form of physical evidence. One of the longest chapters in the Bible, it is a prayer dedicated to the Torah or written word of God. It draws our attention to another realm of knowing tied to another order of submission, compliance and obedience to authority through writing, the word, and the status of the letter.
The Psalms as song or liturgy is inseparable from the ritual context of the book. But it points not to some divine law, but a fabricated, performed, shown doing in response to Bland’s question about how “failing to signal turned into all this.” This doing, a loquitur, in and by the evidence, emerges from a res nulla, a non-self, for we ultimately do not know who opened the book, and by whom or whether it was read at all, except by those following this signifying chain.
Res nulla, unhived, traceless never-leaving, anatta, apophatic thing.
Psalm, song, law, loquitur: texts to be nonsilently read and aurally interpreted.
Murmur is the English word Robert Alter uses to translate from the Hebrew word hagah, which means, “to make a low muttering sound, which is what one does with a text in a culture where there is no silent reading.”16
The trail of evidence Bland left with these specific Psalms suggests the importance of listening for this murmuring. It vocalizes a teaching, and so desire: an ongoing, concrete promise in a libidinal mode of “rebellion” and “rescue” in “the here and now”17 of the physical world.
The compelled aurality of these evidence effect, through familiar imagery and language, the extremities of legal reason and enforcement endured “countermythologically”.18
Lyric-like, aural evidence murmurs that which cannot be directly said or thought. And whatever your listening catches concretizes something more real in the evidence than what self-evident judgement can ever know.
Murmuring itself, res nulla loquitur, is the essence of our desire within law.
Bland murmurance loops and surrounds.
■ ■ ■
- 1 Fred Moten, In the Break (2003), 20.
- 2 Jacques Lacan, Talking to Brick Walls (2017), 98.
- 3 Eugenie Brinkema, The Forms of the Affects (2014), 46.
- 4 M. NourbeSe Philip, Zong! (2008).
- 5 Philip, 50.
- 6 Garner, 9.
- 7 Garner, 29.
- 8 Johnson, 351-2.
- 9 J.L. Austin, How to Do Things with Words (1975), 107.
- 10 Austin, 113.
- 11 Stanley Cavell, Philosophy the Day After Tomorrow (2005), 18.
- 12 Final Report, 45.
- 13 “Full Sandra Bland Arrest Video,” Wall Street Journal (July 22, 2015), 9:05 min.
- 14 Bland arrest video, screen grab at 9:48 min.
- 15 Shane Ellison, Texas Rangers Report of Investigation, approved 8/11/2017, p. 6, my emphasis.
- 16 Robert Alter, The Book of Psalms: A Translation with Commentary (2007), 3.
- 17 Alter, xxxii.
- 18 J. Kameron Carter, “Paratheological Blackness,” South Atlantic Quarterly (2013), 594, discussing Hortense Spillers’s “Interstices: A Small Drama of Words”.