When the looting starts, the shooting starts, and an 1868 Florida statute says that’s okay
“When the looting starts the shooting starts.”
Decades before appearing in a President Trump tweet responding to protests across the United States, these words were first issued as a threat by Miami Police Chief Walter Headley in 1967 amidst racial tensions in the city.
Headley invoked that same line in August of 1968. He was on vacation in North Carolina at the same time as the Republican National Convention taking place in Miami. After race riots broke out, he felt no need to return to the city, saying that his men “know what to do…when the looting starts, the shooting starts.”
This line was not a one-timer, but rather a motto that Headley established in his department in order to maintain control over the community he was sworn to protect.
While the President claims not to have meant it the same way that Headley did, it is important to note that for Headley, this was never an empty threat. It was a promise, a promise that killed 45-year-old father Ejester Cleveland.
The Killing of Ejester Cleveland
On the evening of August 8, 1968, Ejester was out on his balcony with his wife, children, and friends, as they normally did to escape the heat indoors and catch a nice breeze. Other residents of the building were hanging out in the apartment courtyard together, enjoying one another’s company.
But that Thursday was the second consecutive day of race riots in the city during the Republican National Convention, and just before midnight, over 30 police officers responded to a call to Ejester’s housing complex in Liberty City, a black neighborhood in Miami. One officer claimed there were people “hanging over the balconies and the courtyard was full of people and they were starting to throw rocks and bottles and things like that.”
But there was no violence. There was no threat. It was just a community spending their summer night how they always do.
A glass bottle fell from the second floor and shattered. The swarm of police claimed they heard sniper fire, and launched 100 rounds of ammunition into the building in just 10 seconds.
There had been no looting, but the Miami Police Department started shooting. Ejester Cleveland was killed that night.
The event made the front page of The New York Times the next morning. But instead of stating that he was killed in cold blood, the article erroneously claimed that Cleveland was a sniper on the roof of his building. One lieutenant said the violence was producing “firefights like in Vietnam.”
Liberty City resident Barry Gilmore told the Miami News the real story at the time, as reported by The Washington Post two years ago: “The police were at each end and bullets were flying up and down.… The police could have shot in the air but they drew down on the people. They said snipers fired on them but you can walk all through here and ask all the people and not one will tell you there was a sniper. The police probably heard shots from their own men in the next block.”
The legal aftermath of this killing offers insight into how the same justifications for indefensible police violence in the late 1960’s are equally used to defend it today.
The City of Miami Defends the Murder
Ejester Cleveland’s wife, Catherine Cleveland, demanded justice for her slain husband, but it was never clear which officer’s bullet killed Ejester, so no one could be charged. As a result, Catherine brought the case to civil court.
In Cleveland vs. City of Miami, Catherine argued that the killing of her husband was a wrongful death caused by negligent discharge of firearms by the police. The City denied such negligence, maintaining that the police were attempting to control a riot. On top of that, Ejester Cleveland was guilty of contributory negligence and assumed the risk of being shot simply because he was outside.
The primary argument of the the defense was grounded in Florida Statute 870.05, which says that officers “shall be held guiltless and fully justified in law” for a killing while trying to disperse an unlawful assembly during a state of local emergency. The judge presiding over the original case ruled that F.S. 870.05 did not apply and was not to be taken under consideration by the jury.
The jury accordingly sided with Cleveland, mandating that the City of Miami pay Catherine for the wrongful death of her husband.
The City appealed to the Third District Court of Appeals of Florida, who reversed course, saying that F.S. 870.05 was in fact relevant, and ordered that a new trial needed to take place. Cleveland subsequently appealed to the Florida Supreme Court.
This obscure statute, buried in Florida legal code, was established in 1868, following a rewrite of the Florida State Constitution and statutes after the Civil War. Section 870.05 pertains specifically to circumstances when killing is excused in response to riots or unlawful assemblies during a state of emergency. However, in Florida’s legal history — heavily influenced by anti-black racism, such as its longstanding disenfranchisement of felons — F.S. 870.05 was unequivocally designed to allow officers to quash any sort of civil disruption by black Floridians, under the guise of trying to disperse a riot or unlawful assembly.
The Supreme Court of Florida ultimately sided with Cleveland, remanding the case back to the lower court, saying that Section 870.05 did not apply. In 1972, the City of Miami finally paid $80,205 to the family of Ejester Cleveland for his unjust murder.
Statute 870.05 and its Current Relevance
Fast forward 150 years after F.S. 870.05 was enacted, and 50 years since the killing of Ejester Cleveland. America once again finds itself faced with a series of protests from Black Americans and their allies, demanding justice for the murder of George Floyd, an end to police brutality, and the destruction of systemic anti-black racism in the United States.
President Trump’s repetition of “When the looting starts, the shooting starts” — even if, as Trump claims, spoken without awareness of the words’ violent history — reminds Floridians who were alive during the 1968 Miami riots that police violence against black people has been a constant for decades. That attitude, enforced in Headley’s police department, resulted in the death of Ejester Cleveland. Even though the Florida Supreme Court said that Section 870.05 did not apply in the Cleveland case, Section 870.05 still exists and still potentially allows officers to get away with murder in the future.
Earlier this week, the Mayor of West Palm Beach instated a State of Local Emergency that invoked Chapter 870 of Florida Statutes. Not only does this increase the power of state officials to disperse unlawful assemblies, or even riots, but it opens the door for F.S. 870.05 to be used once again to shield an officer that kills a peaceful protestor, or in the case of Ejester Cleveland, an innocent bystander.
Ejester’s family received restitution, but there was no justice. No one was held responsible. The officers on the scene that night reported for duty the next day.
We must stand in solidarity and hold our lawmakers and communities accountable while the protests spark meaningful and genuine reform across the country. But in this light, those exercising their constitutional freedoms of speech and assembly must not be faced with the risk of police violence. Section 870.05, a harmful legacy of slavery embedded in Florida’s present as much as its past, must never be used as an excuse for police to kill again in the state of Florida.
Arcane code from 1868 that excuses and justifies police violence has no place in the 21st century. Florida Statute 870.05 must be repealed.
