California Lynching

Postcard photo of the "Last California Lynching" November 26, 1933, St. James's Park, San Jose, CA

Some years ago, I produced and directed an original play by a local playwright called "'Neath California Skies," a fictionalized account of  what has often been called "the last lynching in California" -- though we know there have been others since then; they're just not... publicized.

The lynching of Tom Thurmond and Jack Holmes for the murder of San Jose department store heir Brooke Hart most definitely was publicized, however, with all day radio announcements of the impending action and live coverage of the doings themselves in the main plaza of what was then quite a modest California town, the seat of Santa Clara County. Afterwards, California's governor, "Sunny Jim" Rolf notoriously issued fulsome praise of the lynchers and promised to pardon anyone who was convicted of participating in the festivities.

Thousands of people gathered in the plaza from all over the Bay Area and other parts of California to witness and cheer the beating, stripping, hanging and burning of Thurmond and Holmes, and to fight one another for scraps of their clothes and other souvenirs of the incident before going home happy and satisfied that justice had been done.

It never occurred to them that perhaps these men had not done the deed, or if they had, that they deserved a fair trial and appropriate punishment as determined by law, nor -- apparently -- did it occur to the media or to the cheery governor of the state of California that a technicality like a "trial" was in order.

Herbert Hoover, who had retired from his disastrous presidency to Stanford University in Palo Alto just down the Penninsula from San Jose, denounced the lynching and  Rolf's approval thereof, only to be denounced in turn by Rolf for sending the army to evict the Bonus Marchers. President Roosevelt also denounced the lynching of Thurmond and Holmes, but one assumes Rolf managed to hold his tongue -- at least in public -- and did not denounce FDR.

But that was all a long time ago, and we're well beyond such pettiness now, aren't we? The play was something of a shock to the audience, because they didn't know that anything like this had happened in California, let alone in San Jose, let alone "so recently." Wouldn't they be surprised to know that lynchings have happened in California much more recently than these two. Oh my yes.

And wouldn't they be surprised to learn that quite a few people protesting in the public squares and streets of California have been charged with "lynching?" The charge was such a shock to some of those who were arrested after peacefully engaging in civil disobedience in Sacramento and elsewhere that they thought the charge was a mistake; they didn't believe they could actually be charged with lynching for participating in a protest demonstration.

To this day, I'm not sure it's ever been fully explained. Most of the lynching charges in Sacramento were dropped shortly after the protesters were released from jail, and a police spokesman was delegated to go around to those who had been charged with "lynching" to personally apologize on behalf of the police department and to assure the protesters that the charge was a "mistake."

But not everyone charged with "lynching" in connection with Occupy and other protests in California has been so lucky. And the fact that the charge was used inappropriately in Sacramento, indicates that it was a fumbled but quite intentional and planned act on the part of the police if Sec. 405a of the California Penal Code were violated in the course of protests and arrests.

Oh?

Yes.

The provision reads as follows:

Specifically, Penal Code 405a provides the definition: "The taking by means of a riot of any person from the lawful custody of any peace officer is a lynching." Penal Code 405b provides the penalty: "Every person who participates in any lynching is punishable by imprisonment...for two, three or four years."

During the course of the thousands of arrests of Occupy and other protesters in California and elsewhere since last October,  there have been more than a few instances of "de-arresting," that is rescuing protesters from the clutches (or the batons, fists, and other weapons) of the Po-Po. Sometimes those de-arrests have been successful, other times not so much. And when police are able to retain custody of arrestees or to regain custody after a failed "de-arrest," they are just as likely to charge the arrestee as well as anyone who tried to help him or her under PC 405a, "lynching."

It should come as no surprise that the anti-lynching law under which numerous California protesters have been charged to date was precipitated by the negative nationwide reaction to the lynching of Thurmond and Holmes in San Jose in 1933. The law was of course intended to forestall another unfortunate incident like that in San Jose -- and it largely succeeded in doing that, as subsequent California lynchings are barely known of outside the circle of those who committed them. On the other hand, starting in 1971, court rulings in California extended the concept of "lynching" from that of a riotous mob taking individuals from police custody for the purpose of their torture and summary execution to one of protecting the police from "riot" -- which, according to the legal definition of "riot" in California, means two or more people  designated by police as participating in a "riot."

One can in fact be charged with -- and convicted of -- "lynching" oneself in California as Tiffany Tran learned to her chagrin in Oakland last December.

Tiffany Tran lynching herself, December 30, 2011, Oakland, CA

Charges were dropped in January, but still. The whole idea of charging people with "lynching" either because they have participated in a "de-arrest" or police believe they are resisting their own arrest is absurdity on stilts.

Thus when the City of Oakland released the Fraizer Group Report (lengthy pdf) on the unpleasantness of October 24/25, 2011, when the Occupy Oakland encampment was violently evicted and protests against the eviction and the violence of the police were met with tear gas and other "less lethal" ordnance -- severely injuring Scott Olsen in the process --  the use of the term "lynch" on page 23 was met with a certain level of derision.

But it turns out that "at law" the use of the term for de-arrests, while absurd, is correct.

Such is the deterioration of language with the result of utter disrespect for authority and law.

As the Analects remind us:

Tsze-lu said, “The ruler of Wei has been waiting for you, in order with you to administer the government. What will you consider the first thing to be done?”

The Master replied, “What is necessary is to rectify names.” “So! indeed!” said Tsze-lu. “You are wide of the mark! Why must there be such rectification?”

The Master said, “How uncultivated you are, Yu! A superior man, in regard to what he does not know, shows a cautious reserve.

“If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success.

“When affairs cannot be carried on to success, proprieties and music do not flourish. When proprieties and music do not flourish, punishments will not be properly awarded. When punishments are not properly awarded, the people do not know how to move hand or foot.

“Therefore a superior man considers it necessary that the names he uses may be spoken appropriately, and also that what he speaks may be carried out appropriately. What the superior man requires is just that in his words there may be nothing incorrect.”

I'll say. And we're way past time for a thoroughgoing Rectification of Names. Way past time.