A community dialogue on policing, civil rights, and race
The academic year began as protests unfolded across the country following the Aug. 9 police shooting, in Ferguson, Mo., of Michael Brown, an unarmed black teenager, and national scrutiny of interactions between law enforcement and minority communities intensified when similar incidents came to light.
Members of the Duke Law community have engaged in a parallel examination of policing, civil rights, and race with a series of student-initiated events: a panel discussion that included an assessment of institutionalized racism in police departments; a “die-in” in Star Commons, designed as a peaceful protest against the apparent disproportionate use of deadly force by law enforcement agents against black and Latino citizens; and a Feb. 14 “teach-in” with faculty experts and guests who offered insights on such matters as grand jury process, federal and state laws pertaining to police accountability, and the historical and cultural context for tensions between police and citizens of color.
Judea Davis ’15, who helped organize all three events, said the subject demands this sort of frank assessment of the situation in the past and in the present, and a commitment to positive change going forward.
“In America, we don't do a good job of acknowledging our history or knowing what our history is,” said Davis, who is pursuing a graduate degree in history along with her JD. “The Civil Rights movement was hugely successful, but it didn't erase all the stigmas and assumptions about black people. We need to find leaders who are invested in the community — lawyers, police chiefs, and representatives of law enforcement — to sit down to continue to talk about these issues.”
That’s why it’s important to keep the dialogue going at Duke Law, said Professor Darrell Miller, a key faculty organizer of the teach-in that was co-sponsored by BLSA, the Center for Law, Race and Politics, and the Office of the Dean. “As a law faculty, we have an expertise with these issues; as a community of professionals, pre-professionals and future leaders and policy makers, we have an obligation engage and discuss these vexing and sensitive matters.”
In addition to Miller, a scholar of civil rights, constitutional law, and legal history, teach-in speakers included James C. Moore, the police chief of Rocky Mount, N.C., Professor Kami Chavis Simmons of Wake Forest School of Law, an expert on police practice and race, and Christopher Brook, legal director of the ACLU of North Carolina. Professor Guy-Uriel Charles, a scholar of constitutional law, electoral law and race, who directs the Center on Law, Race and Politics, was joined by faculty colleagues James Coleman Jr., Lisa Kern Griffin, and Samuel Buell, all scholars of criminal law with backgrounds in criminal defense or prosecution. Dean David F. Levi, the former chief U.S. district judge for the Eastern District of California and a former U.S. attorney, also participated.
The need for data-driven research
One of the first challenges noted was the need for data collection to facilitate an accurate assessment of the state of interactions between police and minority communities. Griffin, a former federal prosecutor, cited data on traffic stops nationwide and “stop-and-frisk” encounters in New York City that indicates minorities are much more likely to be stopped than whites, yet are far less likely to be found with contraband or be engaged in criminal activity. The numbers offer a likely reason for members of those communities to distrust law enforcement, but more information is needed, she said. Levi made a similar call for data on police shootings: “We can’t understand what’s really going on without it.”
Brook called, additionally, for public access to police personnel and internal investigation records.
Grand juries and police oversight
The grand jury purpose and process came under scrutiny, given the failure of two panels to return indictments against officers involved in the shooting death of Brown and the chokehold death of unarmed Eric Garner on Staten Island. Levi explained that it is unethical for a grand jury to be presented with a case that the prosecutor does not believe can be proved beyond a reasonable doubt. But in politically sensitive cases, said Buell, prosecutors may lack incentive to do so.
“Maybe I’m better off presenting a weak case and having the grand jury decide not to indict than taking the heat for not pressing forward,” said Buell, another former federal prosecutor. Reports that the prosecutor in the Brown shooting intentionally presented more evidence than a grand jury would normally hear in hopes of clearing the officer involved “sounded very strange,” he said.
Rocky Mount Police Chief James C. Moore discussed the procedures for reviewing police shootings, and the types of training police officers in North Carolina receive to deescalate possible confrontations. He said a growing number of his peers are paying heed to relations between officers and minority communities and are implementing mandatory training programs on explicit and implicit bias. He also assured students that police departments regularly suspend, fire, or criminally prosecute lawbreakers within their ranks, though often without the media coverage and public activism generated by more obvious injustice.
Cultural and historical context
Moore, Buell and Miller agreed that the prevalence of firearms, facilitated by U.S. gun laws, have the potential to complicate every interaction between police and citizens. Miller also offered a historical framework for tension between professional police departments in the U.S. and minority – primarily black – citizens.
“Police became professionalized during Reconstruction, which meant that it happened during an upheaval with millions of new citizens who were generally despised by the white populace,” he said. “In 1866, there were three large riots revolving around interaction between black men and police.”
The laws designed to allow citizens to sue police and to allow the federal government to prosecute police for civil rights violations provide many immunities and set a high bar for criminal prosecution, he said. Chavis Simmons advocated an approach that would remove the U.S. Department of Justice entirely from involvement with these cases.
“The federal government can change their approach with each administration,” she said. “Having them oversee changes leaves local police out, creates animus and bad morale, and you often lose any advantage when the federal authorities leave.”
The dynamics of cultural and political change were addressed by several teach-in speakers. Charles, the Charles S. Rhyne Professor of Law, suggested that “social movement translated to electoral power” is the key to positive change, and said that the Voting Rights Act, which mandated federal oversight in areas proven to have a history of keeping minority voters away from the polls, might provide a model for a solution. “The Voting Rights Act identified locations, practices and administrative remedies.”
True change can only come with systemic cultural changes, said Coleman, the John S. Bradway Professor of the Practice of Law, who directs the Center for Criminal Justice and Professional Responsibility and co-directs Wrongful Convictions Clinic, which investigates and litigates inmates’ plausible claims of innocence. His work there has exposed a pervasive lack of empathy within the criminal justice system that allows them to overlook the profound effect they have on people’s lives, he said.
“Often, at best, judges and prosecutors are indifferent. From law enforcement to appellate judges, they just don’t care what happens to these people. They are abstractions. ”