A Second Front

Since the people who actually carried out the enslavement of African-Americans are no longer alive, they obviously could not be prosecuted in a criminal court or sued in a civil court. This left the reparations movement totally dependent on a legislative remedy. However, a strategy based on the Proxmire Act has no such limitation since the perpetrators and the victims are still alive and the offense is ongoing. This means a judicial approach can be pursued simultaneously with the legislative approach.

Since violations of the Proxmire Act are a criminal offense, it is natural to conclude that a judicial strategy for reparations should be focused on the criminal court system rather than the civil court system. The fallacy in that approach is that criminal cases are prosecuted – or not prosecuted – at the discretion of law enforcement. This leaves such prosecutions vulnerable to the personal agendas and outside political influences that always surround controversial issues.

On the other hand, civil actions growing out of criminal violations of the law can be pursued at the will of the victims whether a criminal action is brought or not. While the appropriate law enforcement agencies should be continually and aggressively pressured to bring criminal charges whenever possible, ultimately, it will be the civil courts that provide the greater potential.

As this approach is being considered, it is important to understand that reparations is not a cause of action in a civil court proceeding.

That’s because, contrary to a popular misconception, the mission of the American civil litigation system is not to “right the wrongs” of society. Although the result of such a proceeding might be that an injustice is addressed, the court’s only legitimate role is to determine whether a particular defendant (or defendants) harmed a particular plaintiff (or plaintiffs) and, if so, what financial compensation is
appropriate. What this means is that, while the philosophical nature of the civil court strategy being proposed here might be characterized as reparations, in the strictest legal sense it would be a relatively conventional tort action.

Like all such litigation, a comprehensive analysis cannot be given until a particular case exists and all of the variables (case-specific facts, jurisdiction, plaintiff characteristics, etc.) are identified. But a general overview is possible.

In each of these civil court actions, the objective will be to secure financial compensation for damages African-Americans have suffered – not from slavery itself – but as a result of having been targeted for population reduction and/or extermination once slavery had ended. The claim will be that this eugenics- driven campaign, including the openly admitted practice of substituting population control for economic development within the Black community, has caused Blacks to be culturally, financially and politically disadvantaged compared to those groups who were not targeted. An additional claim will be that this effort has devastated the most basic and long-established familial traditions within the African-American community.

Another harm could relate to the issue of voter suppression, since the targeting of the African-American community for population reduction has dramatically reduced its political power. In fact, a legitimate argument could be made that minority population reduction has been – and continues to be – the most powerful and widely used instrument of voter suppression in American history.

As stated in the legislative offensive outlined earlier, the defendants in this civil court strategy would be the individuals and organizations that either directly or indirectly participated in the genocidal behavior documented in Maafa 21. Among the causes of action could be: violation of civil rights, assault, intentional infliction of emotional distress, interference with familial relationships, breach of contract, negligence and deceptive trade practices.

Early on, a strategic decision would have to be made as to whether such litigation should be initially launched as a class-action suit or simply brought on behalf of an individual African-American for whom it is possible to determine a compensable claim. Even if the latter approach is taken, it is probable that the litigation would eventually be expanded into a class-action suit that might potentially include every black man, woman and child in America who may have been harmed in a manner similar to the original complainant. In addition, it may be possible that claims could be brought as a Qui Tam action under the Federal Civil False Claims Act.

It can be anticipated that the primary defenses for this civil court strategy will feature summary judgment motions revolving around statutes of limitations, unrecognized causes of action and the establishment of monetary damages. While these barriers may be formidable, they are by no means insurmountable. Instead, they are a reflection of the fact that all groundbreaking litigation involves hurdles.

As an example, consider the litigation that was brought against the tobacco industry.

In those cases, the plaintiff’s attorneys had to overcome many of the same obstacles that would be encountered by the litigation suggested here. In addition, they had to contend with the fact that their clients were seeking compensation for damages caused by a legal product they had voluntarily chosen to use – despite decades of widespread publicity that it was addictive, dangerous and possibly fatal. In fact, since 1965, every cigarette the plaintiffs in these cases smoked had come to them in a package that prominently featured a warning from the Surgeon General of the United States regarding the product’s known dangers. Even though they made a conscious decision to ignore all of this information, in the end they won the largest financial compensation awards in the history of the American civil court system.

It should also be noted that the compensatory value of cases brought as a result of Black genocide could be ratcheted up enormously if it could be established that the defendant’s actions constituted a Hate Crime. Under existing federal law, a Hate Crime is defined as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation.” In this case, it seems self-evident that the violations of the Proxmire Act as outlined in this document meet the legal threshold for a Hate Crime on both a “race” and “ethnic origin” basis.