"Hell has broke loose": The 1921
Tulsa Race Riot and
the Oklahoma Supreme Court
Alfred L. Brophy(1)
On the evening of May 31, 1921, a mob gathered at the Tulsa, Oklahoma Courthouse, threatening to lynch a young black shoeshine boy being held there. He was accused of attacking a young white girl who worked as a elevator operator. When blacks appeared to stop the lynching, a riot erupted. The Tulsa police chief deputized several hundred white men from the mob. Throughout the night, white Tulsans prepared. And beginning at 5:08 the next morning, white mobs invaded the black section of Tulsa, Greenwood, and left it in ruins. By noon, more than one thousand homes had been burned to the ground and thousands were left homeless. Now, a Commission funded by the Oklahoma legislature is investigating the riot, with the goal to "excavate a history that had been consigned to oblivion for the past 75 years," according to the distinguished historian John Hope Franklin.(2)
Before the Oklahoma legislature established its Commission in 1997, three other official bodies studied the riot. The first two occurred just days after the riot: the fire marshal and the Tulsa County Grand Jury.(3) Th hastily prepared grand jury report blamed Tulsa's blacks for the riot. It is an extraordinary document, which illustrates in vivid detail how an investigation can select evidence, refuse to seek out alternative testimony, and then formulate an interpretation that is remarkably biased in the story it creates. The grand jury report, for instance, declared that the riot was the direct result of "an effort on the part of a certain group of colored men who appeared at the courthouse . . . for the purpose of protecting . . . Dick Rowland. . . ."(4) An indirect cause of the riot was the "agitation among the negroes of the social equality."(5)
There is one other contemporary "report": the Oklahoma Supreme Court's decision in Redfearn v. American Central Insurance Company. The 1926 opinion by Justice Ray culminated a two year suit by William Redfearn, a white man who owned two buildings in Greenwood, the Dixie Theatre and the Red Wing hotel. Redfearn lost both buildings, which were insured for a total of nineteenth thousand dollars. The American Central Insurance Company refused payment on either building, citing a riot exclusion clause in the policies. Redfearn sued on the policy and the case was tried in April 1924. The insurance company defended, claiming that the property was destroyed by riot and the judge directed a verdict for the defendant at the conclusion of the trial.
On appeal Redfearn argued that the jury should have been allowed to determine whether the destruction was caused by the riot or some other cause, such as a fire at a near-by lumber yard. Redfearn also argued that the jury should have determined whether the loss was caused by police rather than rioters.(6)
Redfearn had a tough row to hoe on appeal. The trial judge concluded that there was no doubt in his mind that the damage was caused by the riot.(7) There was substantial evidence, including direct testimony from the insurance company's witnesses, that Redfearn's property was set on fire during the riot. The key question then became how to interpret the riot exclusion clause.
There was one precedent, the Kentucky Court of Appeal's 1911 decision in American Central Insurance Company v. Stearns Lumber Company, which offered some hope to Redfearn. To force rioters out of a building owned by Stearns Lumber, the marshal set the building on fire. The insurance company refused to pay for the damage, claiming that the building burned as a result of the riot. The Kentucky Court of Appeals interpreted the riot exclusion clause narrowly and held that the loss was due not to the riot, but to "the wrongful act of the marshal in setting fire to the house without authority."(8)
The Stearns Lumber opinion is difficult to interpret. At one level there was a link between the riot and the loss of the building. The insurance policy excluded coverage for when riot was the "direct or indirect" cause of the loss. One might think that the riot was the indirect cause of the loss; the fire was set during the riot, in an attempt to end it. The court assessed the facts differently. Because the loss was due directly to the "unlawful act of the marshal," the court refused to allow the riot exclusion clause to excuse liability. Perhaps the theory was that an indirect cause cannot excuse liability when there is a direct cause that is covered by the contract. But the court thinks that the "marshal's posse, acting under his orders, were not rioters." One simple conclusion to draw from Stearns Lumber is that destruction caused-even during a riot-by police officers are not the result of riot. A reasonable interpretation of the case is that loss caused by police is not loss caused by riot. Redfearn drew the parallels between Stearns Lumber and his situation. In both cases, the loss was caused by police and those acting under police orders.(9) Redfearn cited extensive precedent showing that exclusions from coverage are construed narrowly.(10)
The Oklahoma Supreme Court had a different, narrower interpretation of Stearns Lumber. It distinguished Stearns from Redfearn's situation in two ways. First, by noting that the men wearing police and sheriff's badges who burned down the Redfearn's property were not doing so "in order to make an arrest." Stearns found that a fire started to arrest rioters was not caused (even indirectly) by the riot. The Oklahoma Supreme Court, however, thought that a fire started by deputies after the people inside the buildings were arrested was caused at least indirectly by the riot. Comparing the two cases, one reaches the somewhat counter-intuitive conclusion that if law enforcement officials burn a building to end a riot, the insured receives compensation, but if officials burn the building for their own malicious purposes, without trying to effect an arrest, then the insured receives no compensation. The Oklahoma Supreme Court, which appears to have grasped for some distinction between Stearns Lumber and Redfearn's case, because the distinction it articulated made little sense. The Kentucky court emphasized that the officials' actions were unlawful.(11) That same unlawful behavior appeared in the Tulsa.
The Oklahoma Supreme Court drew one other distinction. It questioned whether the men wearing "police badges or sheriff's badges were in fact such officers or acting in an official capacity."(12) If those men were, indeed, not police or deputy sheriffs, then there would be no analogy to Stearns Lumber. Redfearn advanced testimony that the men did receive some sort of instruction from the police department.(13)
The insurance company presented a very different narrative of events at trial. It wanted to show that the riot was the result of black Tulsans and that the destruction was the result of a rioting by mobs, not action coordinated by Tulsa officials. The insurance company introduced testimony that William Redfearn had given at the Fire Marshal's investigation a few days after the riot. At that time Redfearn blamed black Tulsans, who disliked whites. He testified:
The feeling towards white people to a very large degree was anything but good. There was an organization of colored people that termed themselves 'Race Men'. I have been informed by some of the better class of negroes that the prime object was the 'hatred of white men', and was for the purpose of boycotting white business interests. . . . One I.H. Spears, a negro lawyer, . . . made the following statement: "Every time he heard of a lynching it made him want to purchase more ammunition."(14)
Spears' statement illustrates the concerns of black Tulsans with their own protection and captures the mood of the time. Later in his testimony Redfearn blamed the black press:
|There has been newspapers and literature circulated and sold in that part of the city pertaining to supposed outrages committed in other states upon negroes by whites, which only had a tendency to fan the flame of race hatred already existing in that part of the city. Such papers as "The Freeman," published in Indianapolis... "Chicago Defendant" published in Chicago and another pamphlet called "The Crisis."(15)|
But the insurance company's argument at
the end of the brief, in which the insurance company was arguing that there was a riot
and, therefore, that they did not have to pay for the losses, captures well the
destruction contemplated by the white rioters:
|there was all the way from a few hundred to several thousand people engaged in the Tulsa race riot; that they met at different places, some at the court house, some on Greenwood Avenue, some at the hardware store, some at the pawn shop, and fully armed themselves with guns and ammunition, with a common intent to execute a common plan, to-wit: the extermination of the colored people of Tulsa and the destruction of the colored settlement, homes, and buildings, by fire.(16)|
The Oklahoma Supreme Court's opinion in Redfearn deserves careful attention because, as the most result of an adversarial investigation, in which both sides had substantial financial interest in portraying the riot in the light most favorable to them, we have a searching investigation of the progress of the riot.
1. Professor of Law, Oklahoma City
University. A.B., University of Pennsylvania, 1987; J.D., Columbia University, 1990; A.M.,
Harvard University, 1993. Member of the New York and Oklahoma Bars.
I am grateful to Bob Blackburn, Scott Ellsworth, and Lee Conner for their assistance in preparing this preliminary exploration of the Oklahoma Supreme Court's opinion in Redfearn v. American Central Insurance Company, 242 Pacific Reporter 929 (Okla. 1926).
2. Tulsa World, August 10, 1999, at 1.
3. See Tulsa World, June 26, 1921, at 1,8.
4. Scott Ellsworth, Death in a Promised Land: The Tulsa Race Riot of 1921 95 (1982) (quoting grand jury report).
6. See Brief for Plaintiff in Error, at 94, Redfearn v. Am. Cent. Ins. Co., 243 P 929 (Okla. 1926).
7. In order to grant a directed verdict, which took the case away from the jury, the trial judge was required to view the evidence in the light most favorable to Redfearn. A directed verdict was inappropriate if any reasonable minds could differ on the inferences drawn from the facts. See 197 P. at 512.
8. 140 S.W. 148 (1911).
9. Redfearn had to be careful in arguing that police caused the damage, however, because there was also a clause in the insurance contract exempting damage caused "by order of any civil authority." Brief of Plaintiff in Error, supra note 6, at 2-3. Here Redfearn has to argue that the damage was by police, but not by order of civil authority.
10. Redfearn brief, supra note 6, at 107-08. Redfearn also cited two California decisions interpreting clauses excluding coverage for fires resulting from earthquakes. Id. at 107-09 (citing Pacific Union Club v. Commercial Union Assurance Co., 107 Pac. 728 (1910); Pacific Heating & Ventilating Co. v. Williamsburgh City Fire Ins. Co., 111 Pac. 4, 5-6 (1910)). Those cases, when read in conjunction with Stearns Lumber, present a credible case for coverage of Redfearn's loss. Pacific Union Club held an insurance company liable for a fire that spread following the San Francisco earthquake of 1906. Even though the insurance policy excluded liability for all loss "caused directly or indirectly by . . . earthquake," the California Supreme Court found liability when a fire broke out the next day, which could not be extinguished because the water pipes had been broken by the earthquake. Pacific Union deals with a chain of causation that is more remote than the one Redfearn faced, so it may be relatively unhelpful in drawing a line of liability in his case. Pacific Heating and Ventilating may be more probative. It held that if a remote cause of a fire was an earthquake-that is, if the earthquake started a fire, which then spread to the insured's property-the insurance company was liable. Such narrow constructions of exclusions makes Redfearn's case stronger. He could reasonably argue that the clause denying coverage for damage indirectly caused by riot should be construed narrowly, so that there has to be almost a direct connection between the riot and the loss. And that there was an insufficiently strong connection between the riot and the fire. Moreover, the clause exempted only acts caused by rioters, not by police.
They hold that earthquake fire exclusion clauses apply to fires started as a direct result by earthquakes.
11. 140 S.W. at 199 ("The marshal's posse, acting under his orders, were not rioters.").
12. 242 P. at 931.
13. See Plaintiff's Brief, supra note 6, at 67 (testimony of Fire Marshal Wesley Bush).
14. Brief for Defendant in Error, at 48, Redfearn v. Am. Cent. Ins. Co., 243 P 929 (Okla. 1926).
15. Id. at 60.
16. Id. at 207 (emphasis added).