Beyond Civil Rights: The Case for Enforcement of Harassment Laws as a Means to Deter Racially Based Confrontations

As a JAMS mediator, I believe that one of the best ways to assist parties to resolve a dispute is to educate them about the risks they run in continuing the confrontation.  Frequently, after people understand the potential benefits and detriments of continuing a confrontation, it is easier for them to accept a compromise within a resolution that is still in their best interests.  Today, we are engaged in a racial confrontation that needs resolution.

Social media is flooded with videos of people of color being confronted, questioned and challenged by private vigilantes.  These racially based confrontations are not new. Unfortunately, they are part of the everyday experiences of black and brown people in this country.  I and every person of color that I know have had multiple racially motivated confrontations.  These videos make it seem like there has been an increase in these types of interactions, although the ubiquity of the smartphone camera may be one reason for this.  Certainly, our ability to share these videos on social media allow an international audience to witness the humiliation suffered by the victims of these racially based slaps in the face.  How can we make the perpetrators realize the consequences of their behaviors?

Most of the confrontations captured on video follow a pattern.  Ordinarily, we don’t see how they start.  But we have been presented with episode after episode of a people of color being confronted and challenged while simply walking down the street, checking into or out of an Airbnb, sitting in the common area of a dormitory, jogging, sitting on a park bench or, shockingly, standing their own yard.

Often, when the victims are confronted by vigilantes, they say in protest, “You are violating my civil rights.” There are numerous civil rights laws in the United States, but unfortunately, none of them apply to racially based harassment.

The Civil Rights Act of 1964: Prohibits discrimination on the basis of race, color, religion sex, or national origin in the areas of employment, education, voting and public accommodations

The Fair Housing Act: Prohibits housing discrimination on the basis of race, religion, sex, familial status or disability

The Age Discrimination in Employment Act: Prohibits discrimination against job applicants and employees over the age of 40 in terms of compensation, advancement opportunities and other employment conditions

The Voting Rights Act of 1965: Enacted to address Jim Crow laws in the South and other barriers minorities faced when trying to participate in elections

All too frequently, these confrontations are escalated by the aggressor placing a 911 call. When the police arrive, the victim’s irritation and emphatic protests are regarded by the police as aggression.  This leads the police to treat the victim as a suspect.  Far more frequently than necessary, the victim-now-suspect is detained by the police so that they can investigate.  The victim of racially based harassment is placed in handcuffs as the police officer explains, “I am just doing my job.”  And sometimes this scenario ends in tragedy for the victim, while the vigilante might not be detained or even questioned. Society would benefit if there were a motivation for vigilantes to cease these wrongful confrontations. 

One of the reasons these confrontations are proliferating is that there is no downside for the person who initiates racially based confrontations.  These vigilantes have nothing to lose. Why is that?

Individuals who create racially based confrontations can be charged with harassment.  Courts have defined harassment to mean repeated words, conduct or actions that serve no legitimate purpose and are directed at a specific person to annoy, alarm or distress that person.  Section 646.9 of the California Penal Code makes it illegal to harass another person.  All states have similar laws. 

The criminal justice system becomes involved when a vigilante calls law enforcement on a bystander.  Why shouldn’t the victim of racially based harassment utilize the same system? When the police arrive, why shouldn’t the victim of harassment be able to request the detention and arrest of the vigilante?

In due course, perhaps, the posting of videos of racially based confrontations on social media will lead to systemic change. However, the reason we have civil rights is because society needs a mechanism to enforce fairness.  While we hope for a society in which employers treat all employees fairly, we benefit from having Title VII of the Civil Rights Act of 1964, which awards monetary damages when an employer discriminates against employees on the basis of race or sex.  While we dream of a world where landlords offer housing on a fair basis, we benefit from state and federal fair housing laws.     

While we hope for a society free of discrimination, the arrest, conviction and punishment of individuals who harass people because of race would demonstrate that there are consequences for that type of behavior.

In summary, vigilant enforcement of harassment laws could change aggressors’ risk assessment and cause them to think twice before engaging in antisocial behavior.  What do you think?

Hon. James Ware (Ret.) is a full-time arbitrator and mediator with JAMS. Prior to joining JAMS, he spent 24 years as a judge and 16 years as a civil litigator. He can be reached at jware@jamsadr.com.