When one thinks of great works of fiction certain authors come to mind, such as Alice Walker, Toni Morrison or James Baldwin. However, the field of literature is not the only source of fiction. Court opinions, particular those involving racial discrimination and Fourth Amendment rights, are also great sources of fiction. Often judges create abstract legal fiction that belie the truth on the ground. By legal fiction I mean the courts fashion a reality that only exists on the pages of their opinion and not in the streets where people experience real life.
As a civil rights lawyer combatting these illusions is one of the hardest parts of the work I do. People seldom willingly relinquish the comfort of their illusions. Resultantly, the rights of citizens, especially black and brown citizens, are violated daily with the court’s tacit approval. Now our nation arises again in uproar over the deaths of two black men, Terence Crutcher and Keith Scott, at the hands of police officers. Although we are quick to critique the police, we must not forget to place the blame on the shoulders of the courts as well. Police officers would not be able to murder black and brown people in the streets without the court system using legal fiction to absolve them of any wrong. While there are many cases illustrating this point, below are two cases, one from the U.S. Supreme Court and one from my personal practice, that underscore the court’s complicity.
This is a recent Supreme Court decision written by your favorite justice, Clarence Thomas, where the court held that the police may use evidence found after an illegal stop. In this case an officer illegally stopped the Stieff. While detained the officer ran a check of Stieff and found that he had a warrant for a minor traffic offense. Based on the warrant the officer arrested Stieff, searched him and found drugs. The court found the illegal seizure excusable because Stieff had a warrant. However, by failing to rebuke the illegal search, the court in essence, sent the message to police that they can violate the rights of citizens if they can eventually produce legal grounds for having done so. In other words, it is ok for the police to engage in illegal behavior so long as they can catch someone else engaged in illegal behavior.
Justice Thomas justified this opinion by finding that the officer’s illegal search was at most “negligent” and that “there is no evidence that [the officer’s] illegal stop reflected flagrantly unlawful police misconduct.” Apparently violating the Fourth Amendment is not sufficiently egregious conduct for our high court. The court appeared confident that this would not lead to targeting particular citizens or cause further violations by the police. It treated this type of illegal search as an aberration instead of the norm. Stated differently, they engaged in legal fiction.
I could try to explain the dangers in the court’s reasoning, but Justice Sotomayor has already done so in her brilliantly written dissent. I would encourage you to read it in its entirety, but here are a few snippets illustrating the point. She writes, “We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ ” She continues, “This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time…It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” She goes on to mention how black and brown parents have to have “the talk” with their children in order to prevent them from being killed by the police, and how the court’s ruling only serves to further increase that fear.
Personal Practice
Despite Justice Sotomayor’s warnings, the Supreme Court remained unmoved. However, my experiences as an attorney corroborate the truth of her words. For instance, my firm had a case that involved a young man, I’ll call him John, who was a passenger in a car that was pulled over because the tint on the car was allegedly too dark. In the state of Florida, a passenger in a car stopped for a minor traffic violation is free to go and does not have to remain with the vehicle. Unfortunately, that did not happen here. Instead, the police officer illegally detained and searched John. Not only did the officer illegally search John, but he did so four times. On the fourth time the officer magically found one bullet in John’s pocket. Since John had a felony, having a bullet made him a felon in possession of a firearm and he was arrested.[1]
We filed a motion to suppress this magic bullet, arguing that John’s detainment and search were illegal.[2] After all, the officer admitted in his testimony that John was not free to go, which meant that his detainment was not lawful. The outcome should have been straightforward. However, the judge denied the motion stating that he believed John was free to go at any point. When we pointed out to the judge that the officer’s testimony was in direct contradiction to the court’s finding, the judge simply replied, “Well, you’re never really free to go.”
The most frustrating part about the judge’s words is not that he was wrong, but that he was right. He readily conceded that despite what the law says, we are never truly free to go; we are never free to expect that our rights will be protected. Yet, what vexes me the most is that despite being aware of this reality, the court is still willing to impute a false reality onto the situation in order to protect the police. Courts would rather perpetuate legal fiction instead of producing a just end. As a result, the police continue to engage in illegal conduct without fear of recourse.
Therefore, while I am upset at police brutality and the killing of unoffending black men, I would be remiss if I only blamed the police. The court is far too complicit in this issue for us not to condemn their actions as well. Thus, the next time we march and protest, let’s not just take it to the streets, but take it to the courts as well. Let’s force them to surrender their world of legal fiction and step into reality and start ruling in a just manner.
–Until Next Time–
Palooke
[1] Yes having one bullet is considered being in possession of a firearm!
[2] To be clear, we also deny that John ever had a bullet. But that’s the topic for another article.
