Saturday, May 30, 2020

Ain't No Law

Photo from
The other night, a Minneapolis police station was set on fire during anti-police brutality protests in that city--presumably by protesters (though possibly prompted or assisted by provocateurs).  Even assuming the police station fire was solely the work of protestors, however, I had no problem with it--and so on social media, where I declared that police station a "military target."

This surprised some people, since I happen to be a lawyer and lawyers aren't supposed to approve of things like arson.  So let me do some explaining.

I entered law school in the fall of 1997.  Some people go to law school because they want to make money, or because they think law is a prestigious career, or because they ultimately want to work in politics or some other adjacent field.  As for me, I often joke that I went to law school by default owing to my deficiencies at higher mathematics.  But the truth is I wanted to become precisely what the right now derides as a "social justice warrior."

How this has somehow been perverted into an insult is beyond me, but I was actually inspired by the great U.S. Supreme Court decisions that informed the social conscience of my generation.  Just a handful of these included the Court's fidelity to true due process in Gideon v. Wainwright. Free speech in Cohen v. California.  The right to privacy in Griswold v. Connecticut and, of course, Roe v. Wade.  And perhaps above all, equality under the law in Heart of Atlanta Motel v. U.S.A., Loving v. Virginia, and motherfucking Brown vs. Board of Education.  There were many more cases like these in many different courts and on many different issues, of course--and I went to law school because I wanted my name on some of them someday.  I guess some people like to laugh at that, say I was naive or whatever.  Perhaps subsequent events have proven them correct.  But I will make no apologies for aiming high.

So, 1997.  Funny year that was.  Because just a few short months before I loaded up my hand-me-down Chrysler LeBaron and moved into my first law school apartment in Louisville, Kentucky, the Supreme Court decided an obscure case out of Arizona called Blessing v. Freestone.

The Blessing case was a lawsuit by mothers in Arizona who contended that the state was not helping them recover child support from their estranged partners, even though a provision ("Part D") of the federal Social Security Act required the state to do so.  What could a case like this possibly have to do with burning police stations, you ask?   Well, the Blessing plaintiffs had brought their claim under a statute known as "Section 1983."  That may not sound like a very important law, but nothing could be further from the truth.  First enacted as part of the anti-Ku Klux Klan action 1871, it is Section 1983 that has long given victims of federal civil rights violations the right to sue state and local officials who commit those violations.  So if a police officer wrongly arrests a news crew or murders a person in custody like George Floyd, Section 1983 is the law under which those victims may seek justice.

Blessing v. Freestone didn't involve police brutality, of course--didn't even involve police.  But it was still a case of a state official (i.e., the director of Arizona's child support agency) violating peoples' rights under a federal statute (i.e, by not helping mothers collect child support).  So the mothers had a solid claim.  But the federal district court dismissed their lawsuit, basically on the reasoning that Congress did not intend to allow private individuals to sue for this kind of thing.

This seemed to be an odd conclusion; Congress had passed a law providing that states which accept funds under Part D of the Social Security Act must help mothers recover child support, Arizona had accepted those funds, and had failed to help mothers recover the child support--and Section 1983 provided a right to sue state officials who violate federally-protected rights.  So what, then, could be the problem?  The Ninth Circuit Court of Appeals wondered the same thing; surmising that Section 1983 did provide the mothers a means for enforcing the federal statute and receiving the child support recovery services they were entitled to, that court reversed the decision.  But you already know the case didn't end there.

The Supreme Court granted review and heard oral arguments in fall 1996.  Six months later, Justice Sandra Day O'Conner issued the court's unanimous opinion.  The lawsuit could go forward, the court held, because Part D (of the Social Security Act) might establish federal rights that the mothers could enforce.  But the mere fact that Congress had passed a statute requiring the states to help mothers collect the child support was not enough to conclude as much.  Rather, this all depended on whether Congress actually intended that statute to benefit the mothers, whether imposed unambiguous obligations on the state, and if so, whether those obligations were clearly defined.  "To seek redress through § 1983," Justice O'Conner wrote, "a plaintiff must assert the violation of a federal right, not merely a violation of federal law."

This idea, that federal laws do not necessarily create federal rights, is precisely the kind of legal derangement for which the profession is widely despised.  Justice requires that a person injured by a violation of the law should have a legal remedy for that violation.  Section 1983 was that promise of justice.  But in Blessing, the Supreme Court divided laws into two categories: those which create enforceable "rights," and those that do not.  Section 1983 made no such distinctions, but the Supreme Court said it did.  We would have justice in only the former category.  Future decisions would then nibble into that category, shrinking bit-by-bit the federal laws that remained enforceable as rights.

What may have begun in an esoteric case about Arizona's duty to help mothers collect child support hardly remained there.  Since the Blessing decision, federal courts have relied on the same reasoning to deny claims by countless victims of federal law violations--ranging from discriminatory "English-only" driver's tests in Alabama to a university's the improper disclosure of private student records to illegal evictions.  As the federal judiciary become more and more heavily polluted with right-wing judges determined to eliminate civil rights (or, at least, private citizens' ability to enforce civil rights), the types of laws found not to create enforceable "rights" has ever widened--to the point that many responsible advocates remain from even bringing cases under laws that have yet to be declared "non rights-creating" for fear of providing new opportunities for judicial nullification.

Similar processes have played out across other aspects of law.  Even where specific rights exist, courts have narrowed "standing" doctrines to prevent enforcement by people without tangible injuries.  Cases that could once be filed in open court and tried before the public and press are now forced into private arbitration behind closed doors.  Judges disdainful of anti-discrimination statutes have narrowed them in bizarre ways, such as allowing corporations to discriminate based on their religious beliefs.  And in the realm of police misconduct, the doctrine of "qualified immunity" makes holding a police officer liable for careless mistakes impossible and exceedingly difficult even for intentional brutality or misconduct.

The result is a functionally lawless society.  Now, of course we do have laws--as well as courts, police, lawyers, and other trappings of a judicial system.  But our society does not actually operate according to what those laws say.  The laws are enforced heavily against some, lightly against others, not-at-all against still others.  Those seeking justice under promised rights and protections face an arbitrary system that may or may not deliver on what the written word says.  Our law is a farce; what matters instead is only power.

In a society governed by the rule of law, community members could have confidence that any police officer who murdered a person on video would be promptly charged and prosecuted.  But in a lawless environment, only power can force the hand of justice.  Peaceful demonstrators can perhaps be ignored, but those who burn the police station down cannot be.

The dominance of power is nothing to celebrate, of course, as it tends to favor those with resources and a willingness to act selfishly and violently.  So I surely believe in the rule of law and hope to see it restored.  But we must recognize that today, in the United States, the rule of law is not truly in effect.  It certainly was not in effect in Minneapolis' third precinct.  When the police force there chose not to observe the laws they themselves purported to enforce, they lost any right to expect the community they policed to observe those laws either.  They welcomed this because in a pure power dynamic, normally the advantage rests entirely with them: the police hold the guns, the badges, the handcuffs, the cages.

But not this time.  This time, the community burned down their fucking police station.  And that's just fine by me.

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