Excerpted From: Kindaka Sanders, The Watchman's Time to Kill: The Right to Vigilante Justice in the Jim Crow South, 25 Journal of Gender, Race and Justice 355 (Spring, 2022) (391 Footnotes) (Full Document)


KindakaJamalSandersThe HBO series Watchmen raises compelling questions about the potential constitutionality of certain forms of extrajudicial justice. The series is set in an altered history of modern-day Tulsa, Oklahoma. The story picks up after the Seventh Kalvary, a secret white supremacist society, murders all the police officers in Tulsa except two, the chief of police and the black female lead, Angela Abar, played by actress Regina King. The new crop of police officers wears masks to protect their identities from the Kalvary.

Late in the series, Abar discovers that she is the granddaughter of the first black police officer in Tulsa. Her grandfather, Will, had witnessed the Tulsa Massacre of 1921 as a child. Crazed white Tulsans killed Will's parents because they were jealous of the prosperous AfricanAmerican community dubbed the Black Wall Street. He barely escaped with his young life.

Will later returned to Tulsa in 1938 and became a police officer, but the department was rife with racism. After discovering a plot called “Cyclops,” his white counterparts pulled a hood over his head, beat, and hung him. The officers cut him down before died, warning him that investigating “Cyclops” would be a fatal error. While walking home, he places the hood back on and takes on the persona of Hooded Justice. He later discovers that “Cyclops” is a plan by white supremacists to use a hypnotic film to cause violent, self-destructive eruptions among the black population. As a result, his alter ego, Hooded Justice, terminates all the white supremacists involved.

Abar first meets Will after he phones her, demanding that she meet him at a particular location. When she arrives, she finds her friend and mentor, the white chief of police, hanging by the neck. An elderly gentleman in a wheelchair is sitting beneath him. The elderly gentleman claims responsibility, but Abar is incredulous. It turns out the chief of police had been a closeted, high-ranking member of the Kalvary. Will had used an adapted form of the hypnotic video to compel the police chief to hang himself.

Watchmen presents some of the same questions about race and justice that the movie A Time to Kill did almost 25 years earlier. Time to Kill portrays a white southern attorney, Jake Brigance, defending a black father of a 10-year-old daughter charged with murder. The father, Carl Lee Hailey, visits Jack early in the film and confirms that four boys raped a black girl a year earlier with impunity. The implication is that Carl Lee will have to get justice himself. The next day, Carl Lee mows down the rapists as they enter the courthouse.

A Time to Kill is set in a majority white city in Mississippi in the 1980s, where aspects of the JimCrow South remained. Both films evoke the true history of extrajudicial white violence against blacks in the JimCrow South. A case in point is the case of Emmett Till.

J.W. Milam and Roy Bryant brutally murdered Till for allegedly whistling at a white woman in the Mississippi delta in 1955. Mamie Till, the mother of Emmett Till, recalled a moment during the trial of her son's murderers that illustrates the ubiquity of criminal injustice in the JimCrow South; when the defendants were white and the victims were black. The black supporters automatically and in mass began to walk out of the courtroom when the jury retired for deliberations. The implication was clear. Their job was done. They had seen this movie too many times to wait for the credits to roll.

When Till's mother saw the black audience leave the courtroom, she leaned over and said to her companion, “It's time for us to go. Congressman Diggs said to me, 'and miss the verdict?’ I said, 'this is one you don't want to hear. The verdict is not guilty.”’

Of course, what followed was almost as predictable as the effects of gravity. About 45 minutes after the jury went in, they came out. The verdict was not guilty.

Till's mother remarked to a news reporter that “the whole trial was just a farce ... but the verdict was the one I expected.” When news officials interviewed the foreman of the jury, he remarked, “it wouldn't have taken us that long, but they told us to make it look good. So we had some soda pop and beer and ... waited a little while, and then we came back with our verdict.”

Subsequently, the state prosecuted the defendants on kidnapping charges. Their evidence was iron-clad. The defendants had been caught red-handed. They had forcibly taken Emmett from his grandmother's home in front of several witnesses. Convictions would have been inevitable had this not been the JimCrow South.

Not only were the men not convicted, but the grand jury refused even to indict them. In another bold display of Southern self-righteousness, Sydney Carlton, the lawyer for the defendants, basically admitted in a press conference in front of news cameras that his clients were guilty, stating: “Frankly, I think that this is a result primarily of the interference in Mississippi, in Mississippi affairs by outside interests, and a result of the NAACP and their activities in trying to make something big out of just an ordinary and criminal affair in Mississippi.” A year later, the defendants, J.W. Milam and Roy Bryant confessed to the kidnapping and murder to reporter William Bradford Hui.

Emmett Till's cousin, who was present during the whistling incident, remarked years later, “you never expect anything but for them to be acquitted because that was Mississippi during that time.”

Before the murder trial, the Sheriff of Tallahatchie County, H.C. Strider, made the following comment; not in private, not off the record, but intentionally in front of a news camera:

I'd like for the NAACP, or any colored organization anywhere, to know that we are here, giving all parties a free trial, and intend to give a fair and impartial trial. And we don't need the help of the NAACP, and we don't intend for them to help. We never have any trouble until some of our southern niggers go up north, and the NAACP talks to them and they come back home.

This same sheriff, immediately after Till's body was found, had unilaterally arranged a quick funeral in an apparent effort to prevent an autopsy from being performed on the body. Sheriff Strider wanted an immediate burial because he knew if people saw Emmett's body, it would make the State of Mississippi look bad. Mamie Till recalls, “the only way you could stop people from seeing was to bury it. I mean to get it out of sight. I don't know what authority he had to bury my son, but he took that authority.”

Both A Time to Kill and the HBO series Watchmen add interesting texture to the discussion about criminal justice and race by highlighting inequities in the justice system. However, the films ask the viewer to assess the justness of Hooded Justice and Carl Lee Hailey's actions within the confines of the traditional legal structure, using unlawful extrajudicial justice and self-defense as rubrics. But both characters' efforts go beyond current notions of self-defense and even beyond the Second Amendment right to community defense championed by individuals such as Robert Williams in Monroe, North Carolina in the late fifties; groups like the Deacons of Defense in Louisiana in the mid-sixties; and the Black Panther Party in Oakland, California in the mid-to-late sixties and early seventies.

These community defense groups protected the black community from the immediate use of deadly force by white supremacist organizations and the police. However, Hooded Justice's actions in Watchmen and Carl Lee Hailey's response in A Time to Kill are different matters altogether. The films do not premise the two characters' actions on protection from impending force but rather on general notions of justice that fall outside established laws. There is no common law doctrine that provides a defense for vigilantism, no matter how just. However, other potential sources support a narrowly tailored defense in both situations.

In 2016, Colin Kaepernick, then starting quarterback for the San Francisco 49ers took a knee during the pre-game singing of the national anthem in protest of uninterrupted history of police officers killing unarmed black men. The protest caused a national media explosion leading to far-flung accusations against Kapernick for disloyalty and treason. The issue was even hijacked by then-President Donald Trump as a political football to hand off to his base. However, Kaepernick's explanation of why he was protesting suggests that he was perhaps more American than his critics. He explained:

I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color .... To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.

He added that he would continue to protest until “[the American flag] represents what it's supposed to represent.” In other words, Kaepernick argued he owed no allegiance to the flag because the government had failed to protect AfricanAmericans from being routinely beaten, harassed, and killed by police officers. He would continue to withhold allegiance until the government stepped in to stop the abuse.

One of the themes behind the Fourteenth Amendment is the theme of allegiance for protection. Under this maxim, “citizens owe allegiance to their government in exchange for the government's” protection from criminal and civil harm. Said differently, there is no social contract to abide by the law when the law doesn't uphold its end of the bargain. The case for self-help, at least as far as AfricanAmericans in the JimCrow South were concerned, was that state and local governments were not protecting AfricanAmericans from mob violence, lynch law, and Ku Klux Klan terrorism, so AfricanAmericans had no obligation to obey state laws, including criminal prohibitions. In other words, AfricanAmerican acts of vigilante justice or self-help would have been necessary because the states failed to protect AfricanAmericans from domestic terrorism.

The potential sources establishing viable defenses in both Carl Lee Hailey and Hooded Justice's cases derive from the Bill of Rights and the Fourteenth Amendment. All of the sources share one element in common: the right to use redistributive force. Redistributive force, as coined here, is the force used when the prerogative to use force is not distributed evenly by government bodies or actors. It is a constitutional remedy premised on the failure of government. It derives primarily from the Fourteenth Amendment right to Equal Protection and the Equal Protection Clause's promise of protection in exchange for allegiance. The Second Amendment right to rebel and the Second Amendment political necessity defense provides additional support. The Ninth Amendment, which protects unenumerated natural rights, also implies a natural right to justice based on the natural law of cause and effect (actions and equal and opposite reactions). Furthermore, the survival of the democratic aspect of the U.S. government and fundamental notions of fairness undergirding the Constitution supply strong policy rationales for redistributive force.

The Fourteenth Amendment justifications for redistributive force are rooted in the Equal Protection Clause. The philosophical foundation of the Equal Protection Clause is the fundamental law of government, protection for allegiance--a principle also underlying the Declaration of Independence. Citizens agree to follow the rule of law in exchange for protection from the government and wrongdoers alike. The implication is that no allegiance is due when the government deliberately fails or refuses to protect its citizens.

Government failures to protect race-aggrieved groups from the tyranny of the majority violate the Equal Protection Clause. Criminal justice systems that routinely exonerate white crimes against protected classes also violate it. The question becomes one of remedy. The entire justification for redistributive force is the failure of government. This failure includes both the state and federal governments. So government remedies, by definition, are out of the question. The only options left are either chronic injustice or self-help.

In his Commentaries of the Laws of England, Sir William Blackstone, the father of American law, asserts that self-help is an option “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” This article argues that insufficient sanctions include a state or local government's consistent failure to bring domestic terrorists or tyrannical government officials to justice, or such government's deliberate indifference to chronic inequity in its criminal justice system. Examples of chronic injustices include systematic exclusion from jury and grand jury participation and the refusal of law enforcement to arrest or the state to prosecute. Additionally, the United States Government must fail or refuse to enforce the Equal Protection Clause in the jurisdiction.

A right to use redistributive force is also implicit in the Second Amendment right to rebel. Sean Patrick notes in his best-selling book The Know Your Bill of Rights Book that “Americans theoretically have a right to insurrection to correct intolerable and systematic abuses.” Thomas Jefferson wrote, “[t]he strongest reason for the people to retain the right to bear arms is, as a last resort, to protect themselves against tyranny in government.” The Supreme Court confirmed the right to rebel in Heller v. District of Columbia in 2008 and McDonald v. Chicago in 2010. Redistributive force framed as a rebellion against systematic government abuses becomes a Second Amendment right.

The Second Amendment also includes a version of the political necessity defense. The Second Amendment political necessity defense vindicates the Second Amendment right to rebel. Under this configuration, Carl Lee Hailey would plead political necessity at his trial. He would argue he had a right to rebel against a jury system that tyrannically and unjustly gave impunity to guilty whites. Then Carl Lee would say that the tyrannical jury system resulted from deliberate indifference on the part of Mississippi and the failure of the federal government to intervene. Lastly, he would argue that the political necessity defense vindicated his right to rebel. His actions were politically necessary because the court system in the jurisdiction could not be relied on to protect the lives of AfricanAmericans or to mete justice out to civilian oppressors.

The Ninth Amendment to the Constitution is another potential source for the right to redistributive force. The Ninth Amendment preserves natural rights not enumerated in the Constitution. The natural law of cause and effect expressed in Isaac Newton's third law of motion is maybe the most natural law existing. Newton's third law of motion holds that for every action there is an equal and opposite reaction.

Justice is the equal and opposite reaction to injustice. Accountability is the natural response to private violations of the natural rights of others. When government fails to provide the effect natural law demands, the only way to achieve natural balance is extrajudicial justice.

Natural law roots American government. Natural rights, the legal offspring of natural law, is the subject of the Bill of rights. The Ninth Amendment's natural right to justice extends the natural laws undergirding the American government and the natural rights contained in the Bill of Righ

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When the government cannot protect citizens from a home invader or an assailant, are citizens expected to be invaded or assailed, or does the Constitution allow them to protect their own interest? In some instances, what government deems vigilante justice may be the only justice available “when the sanctions of society prove insufficient to restrain the violence of oppression.” When the government is unavailable to rescue a homeowner from a burglary or a citizen from an imminent attack, the Second Amendment and all state governments provide a solution, self-defense. Similarly, when the government is unavailable to or disinterested in protecting its citizens' liberty and justice interests, should not the citizens be allowed to protect their own interests?

The Fourteenth Amendment provides a basis for a right to vigilante-style justice when there is a breakdown in constitutional order. This breakdown presupposes a state's deliberate indifference to the rights of its citizens and the federal government's breach of its duty to protect.

The Second Amendment and the Ninth Amendment strengthen the argument for redistributive force. The Second Amendment contains a right to rebel, redeemed by the Second Amendment political necessity defense. The right to rebel authorizes citizens to rebel against acts of government tyranny and suppression. When a state facilitates private tyranny, citizens have the right to terminate the state's power to regulate the area in which it has allowed private citizens to run amok. Having terminated the government's authority, the citizen then has the prerogative to reestablish order in the government's place, including redistributive force. If the state arrests and prosecutes the citizen-rebel for using redistributive force, the Second Amendment allows a defense. This defense, a political necessity defense, enables the citizen-rebel to contest the charges in state court and appeal up to the Supreme Court, if the state disallows the citizen to present the defense to the jury.

The Ninth Amendment confirms the right to redistributive force. The Ninth Amendment contains natural rights unenumerated in the Constitution. Two of these rights are the right to equal justice and the right to justice. When a state denies a citizen's fundamental right to justice or equal justice, the federal government's job is to step in and salvage the right. Suppose the federal government fails to protect the citizen. In that case, the Ninth Amendment right to justice authorizes the citizen to use redistributive force against the private assailant to redeem the citizen's own liberty and justice interests. Similarly, when state and local governments facilitate unequal convictions or punishments based on race or other protected classifications, members of the protected class have a right to equal impunity. That is, defendants from unevenly convicted groups have a right to file writs of habeas corpus in federal courts to achieve their freedom. The rationale is that the state of conviction routinely convicted or punished similarly situated minority defendants while failing to prosecute or exculpating similarly situated white defendants.

The right to justice, the right to equal justice, and the Fourteenth Amendment right to Equal Protection also apply to entire groups of citizens if the group shares a common history of government deprivations of liberty and justice interests. In this case, the groups are authorized to organize vigilance committees, posses, and the like to enforce group rights.