Tuesday, December 23, 2014

Liberty, Security and Imagination: Teaching Law Students in the Age of Ferguson

The last night of seminar for the Community Justice Clinic was the same night a New York grand jury chose not to indict the police officer who killed Eric Garner.  The protests in New York that night joined protests underway in the wake of Michael Brown’s killing and the decision of a grand jury in Missouri not to indict the police offer who shot him to death. 

In class I asked my students what would make them demonstrate in the streets, what would make them disrupt freeways, commerce and public spaces.  They answered that they would take to the streets if they did not feel heard or if they felt as if they had no power to effect change otherwise.  They would take to the streets to change a system that would not listen to them, to hold power accountable, to bear witness.    

We discussed why protests turn to riots and what might make a demonstrator burn business and structures in their own neighborhoods.  No one condoned looting and burning for their own sake or as effective political moves.   We had good discussions about seeing a blighted neighborhood as a symbol of oppression in its own right, how a ghetto might be a prison build on systemic, generational racism, so that burning one’s own neighborhood might just be rage at the ever-present symbol of one’s own confinement and disenfranchisement. 

We read King’s answer to those who challenged him about demonstrations turning to riots: 

Now I wanted to say something about the fact that we have lived over these last two or three summers with agony and we have seen our cities going up in flames. And I would be the first to say that I am still committed to militant, powerful, massive, non-violence as the most potent weapon in grappling with the problem from a direct action point of view. I’m absolutely convinced that a riot merely intensifies the fears of the white community while relieving the guilt. And I feel that we must always work with an effective, powerful weapon and method that brings about tangible results. But it is not enough for me to stand before you tonight and condemn riots. It would be morally irresponsible for me to do that without, at the same time, condemning the contingent, intolerable conditions that exist in our society. These conditions are the things that cause individuals to feel that they have no other alternative than to engage in violent rebellions to get attention. And I must say tonight that a riot is the language of the unheard. And what is it America has failed to hear? It has failed to hear that the plight of the negro poor has worsened over the last twelve or fifteen years. It has failed to hear that the promises of freedom and justice have not been met. And it has failed to hear that large segments of white society are more concerned about tranquility and the status quo than about justice and humanity.

We compared and contrasted those who would interrupt commerce and disrupt a marketplace in protest of injustice with the old American heroes who destroyed the private property of business owners shipping tea to be taxed by the Crown, by dumping it into Boston Harbor. 

I asked the students, these future lawyers, what conditions must exist for a loser, someone who receives an adverse decision or must endure an unfavorable legal or political outcome, to accept it.  In a democracy, how must the system operate to ensure that losers accept an outcome rather than resorting to violence, vigilantism or self-help?  They answered that the party who loses must feel that the process was fair, that the case received a neutral hearing, that they could trust the people in the process.  If a loser trusts the system to adjudicate a claim fairly and without bias or favoritism, then the loser is more likely to go peacefully.      

This led us to discuss the profession’s historic, moral call to public citizenship.   The ABA Model Rules of Professional Conduct express the call that lawyers (every lawyer, not just bleeding hearts) are “public citizens” who should “further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”

Last week, the national discourse changed again when New York City Police Officers Wenjian Liu and Rafael Ramos were assassinated by a violent man who had shot his girlfriend hours before he shot the officers.  The killer claimed to target police because of Ferguson.  This crime is abhorrent, the vicious murders of public servants bound to protect and serve their communities.    

For some, this changes the rhetoric of the debate, and they demand that citizens silence their grievances against police excess and corruption.  Some blame recent protests against police use of deadly force, systemic racism and mass incarceration for inciting this violence against the police.   Some have blamed the civilian political leadership for undermining police authority by pushing for reform and accountability.    

Brutal and discriminatory police practices do not justify violent attacks against the police.  Perceptions of ambiguous threats by unarmed citizens do not justify deadly force by the police.  Neither justifies the suspension of the Rule of Law, civil rights and social morality.  In America, the state’s police power cannot rightfully silence and suppress dissent and the people’s call for a redress of grievances, and the people should not return violence for violence.  

When blood flows, the rift grows between the police and the policed.   As trust deteriorates, deference to authority becomes increasingly tenuous, and the authority may respond with more force and power to ensure the subjects’ deference.  A street occupied by a militarized police force may experience more violent protest than one patrolled by a civilian police presence, because the people will oppose the excessive force with greater force.  An overwhelming presence of police can bring security but can also heighten fears and chill community engagement. 

We are not bound to these binary choices, either capitulation to absolute police authority or surrender to violent crime.  As Ben Franklin advised us, we cannot trade liberty for security and keep either.   We must imagine new paths of justice and peace.  New paths require trust among the police and policed, the state and the citizen, the sovereign and the subject, neighbor and neighbor.  If we are serious about avoiding the persistent mistakes of the past, we must include more people, more communities, more voices, more criticism and more ideas in our discourse.  So long as discrete communities are alienated, targeted and excluded by the power of the state and our economic systems, we will reap what we sow. 

As Prof. Laurent wrote earlier, this is ours We are lawyers.  We are the keepers of the justice system, operatives of the Rule of Law.  When we prescribe more trust in the system, we are calling for more trust of the people in the system, and the people in the system are lawyers.   Our students, the students with whom we practice law in our clinics, the students before whom we model our own public citizenship will carry that weight and that obligation into the world.  This is the work of lawyers, to reform the law and to advocate for a sustainable, accessible justice system that invites fulsome and fair participation.     

We can mourn both the loss of police killed in the line of duty and those killed by police without justification. We can fight against the outrage of systemic racism and denounce the brutality of an assassination of public servants. We can enforce our laws vigorously and demand democratic accountability of state police power. We can build trust in our legal system and public servants while resisting violent crime without militarizing our streets. We can defend ourselves without going to war with neighbors. We can achieve liberty, security, justice and liberty for all, but the social contract always and ever requires humility, presence, discipline, conviction, inclusion, patience and nonviolence.

https://lawprofessors.typepad.com/clinic_prof/2014/12/liberty-security-and-imagination-teaching-law-students-in-the-age-of-ferguson-.html

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