Making Room for Ignored Citizen Narratives of Police Encounters

“Not everything that is faced can be changed,
but nothing can be changed until it is faced.”^[1]

I began to write this essay in August 2020 after returning home from Black Lives Matter Plaza in Washington, D.C. While there, I took in colorful images painted on boarded up windows of familiar buildings, photographs tacked on the high gate that has now taken residence outside of Lafayette Park, and bold yellow letters inscribed on the very street itself.^[2] This mournful art tells the stories of mothers losing children, children losing fathers, and other profound loss. It demonstrates unimaginable pain and a cry for a response that reflects empathy and acknowledges our shared humanity.

This summer exposed in vivid detail the countless stories of black citizens who have been killed at the hands of police.^[3] While any death is tragic, the senseless nature of so many of these acts has drawn the attention of the public. Black people are disproportionately killed by police officers even when unarmed.^[4] After the killings of Michael Brown, Eric Garner, and many other unarmed black people received significant media attention, but grand juries failed to indict the responsible police officers, the Black Lives Matter movement gained traction, raising awareness of the issues of police brutality and racial injustice.^[5] These stories seemed to resonate on a deeper level and with a broader audience, however, after the killing of George Floyd, a black man whose agonizing death, captured on video and shared widely, offered a grim snapshot of systemic racism.^[6] To the horror of bystanders, the police officer who took Mr. Floyd’s life kneeled on his neck for approximately eight minutes and forty-six seconds, all the while with his hands rested casually in his pockets.^[7] Meanwhile, his fellow officers, took no action to help Mr. Floyd, ignoring Mr. Floyd’s desperate pleas and those of the crowd.^[8]

As conversations about police brutality have found their way to dinner tables and coffee shops, the public outcry in response to these stories has also reached new dimensions. In recent years, police killings and assaults on black people, often recorded on smartphones and streamed to huge audiences on social media, have ignited sizable and extended protests.^[9] But this summer’s protests took place in more cities across the United States and in more countries around the world; protests were larger and sustained for longer periods of time, with words of support expressed by institutions that had previously remained silent.^[10] And the government’s harsh response to protestors seemed only to increase the collective resolve, making the problem of police brutality more personal.^[11] Indeed, from these massive protests, a panoply of videos of police officers assaulting peaceful protestors emerged, casting a broader lens on the problem of police violence.^[12]

While some have chosen to ignore the reasons behind these widespread protests, their purpose, printed on handmade signs and shouted through bullhorns, seems abundantly clear. In the face of inconceivable loss, people are crying out not only to express their immense sadness, anger, and grief; they are crying out for justice. They are asking the government to address their pain and loss. They are seeking a meaningful response to their stories.

This season has led me to consider how the law is treating this harm. How are the courts addressing these citizens’ stories? And even more, how are we as members of the legal academy training our next generation of lawyers to better address these concerns and work toward the goal of a more just and fair legal system?

In pondering these questions, I think back to conversations that I have had with other legal academics about whether teaching students about “justice” is the role of the law professor. Some professors worry that the term means different things to different people. Others contemplate whether professors are crossing a line when they introduce critical perspectives or challenge the legitimacy of laws in foundational courses. They fear that they will be accused of being overly political or attempting to indoctrinate students, encouraging them to accept the professor’s way of thinking.^[13] Yet in law schools when we teach students about the law without offering meaningful critique, we are doing students a disservice. When we treat the law as if it is impartial rather than acknowledge its history and the choices that led to its making, we signal to students that this context is unimportant. And if we ignore stories that have not been prioritized in the law, we unwittingly communicate our acceptance of their diminishment and absence. If we teach the law without pointing out its rhetorical nature, we are not teaching in a neutral way; we are promoting the status quo and normalizing existing inequities.^[14]

In saying this, I recognize that I too have failed to discuss sufficiently and in direct enough terms the law’s varied treatment of different actors—how it elevates the voices of some while it suppresses the voices of others. However, the summer of 2020, and the years that led up to it, have convinced me that I need to do more.

Like most legal writing professors, my primary goal has been to teach students to advocate within our American legal system. One of my secondary goals, however, has been to expose students to areas in which there is inequity in the law. As a program director, one of my responsibilities was to develop the hypothetical legal problems that first-year law students used to write adversarial briefs in their spring persuasive legal writing course. The law school where I taught was in Baltimore, a big city that saw its share of unrest following the death of Freddie Gray, a black man who died after riding in the back of a police van while shackled and in police custody.^[15] Criminal procedure was not on the law school’s required menu of courses. So, in an effort to introduce students to laws that are important to all citizens, but perhaps even more to those in predominantly black communities like the one surrounding the law school, I made it a practice to select legal problems with Fourth Amendment issues involving interactions between citizens and the police. These legal problems proved to be excellent pedagogical tools as they offered students appropriate academic challenge and engagement but also introduced students to important laws that matter in the daily lives of everyday people.

At the start of the persuasive legal writing course, students were assigned to represent a side in a case before the trial court. Later, the students would switch sides and represent the opposing party on appeal. The Fourth Amendment legal problems afforded an opportunity for students to immerse themselves in the legal authority for an important subject area. The writing assignments also offered students the unique opportunity to approach the law from the perspectives of both the prosecution and the defense.

As one might expect, we started our work by exploring the language of the Fourth Amendment to the United States Constitution. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and asserts that this right “shall not be violated.”^[16] Actions brought pursuant to the Fourth Amendment can include citizen claims of police excessive force. The Fourth Amendment can also form a basis for citizens’ challenges to police stops, searches, or arrests. Yet while the plain language of this constitutional provision focuses squarely on the people’s rights and security and omits any reference to government actors, this focus is not borne out in the case law. Ironically, the courts’ imposed legal standards leave little room for consideration of citizens’ stories, while giving significant attention to the perspectives and experiences of police officers.^[17]

In writing their briefs, the students easily recognized the imbalance in how the law treated each side’s story. In representing the defense, students found it difficult to identify a space to tell their client’s story. The students’ legal writing textbooks encouraged them to write statements of fact from the client’s perspective and point of view, painting their client in a positive light.^[18] However, they were also taught that the facts included in their statements should be legally significant and thus relevant to the outcome of the case. As the students drafted their statements of fact for the defendant, they found it challenging to follow this seemingly competing advice where their client’s story was not invoked by the legal standard.^[19] The law requires judges to consider police encounters with citizens from police officers’ perspectives and to give deference to police officers’ experiences.^[20] Moreover, the focus on citizens as potentially suspicious and dangerous placed their clients in an unappealing frame that they had little opportunity to challenge. Arguments of racial bias and profiling have been deemed irrelevant in the Fourth Amendment context.^[21] In fact, arguments that a citizen was not engaged in criminal activity when approached by police can be of limited importance as well.^[22] It is the facts as described by the police, too often ambiguous while treated as not, that matter to the court in this context.^[23]

As the students drafted their statements of fact, they would often ask telling questions like, “How do I write my statement from the defendant’s perspective if the law doesn’t care about it?” Or “How do I talk about the defendant’s experience if the legally relevant facts are those offered by police officers to justify their actions?” And, at times, “Is there someplace I can address other possible reasons for the police stop?” Or “Do we have to pretend police officers are never biased or bad actors?” In response to these questions, we would often look to briefs in real cases for examples of how the facts were handled there. But these forays into attorneys’ briefs only validated the students’ raised concerns. Many defense attorneys did their best to tell their client’s story and assert their client’s facts in arguments despite the legal standard. But, too often, defendants’ briefs, even those in cases before the Supreme Court, included statements of fact that easily could be mistaken for those of the prosecution.^[24]

The students further demonstrated their recognition of this imbalance when they imagined themselves in the role of the hypothetical judges who would read their briefs and decide their cases. After the students completed their first drafts, we would engage in an exercise where they would remove their advocate hats and put themselves in the shoes of the decision-maker. In this exercise, students easily recognized that police had a distinct advantage even when they had weak case facts. Through their writing, students had come to appreciate the implications of a legal standard that considers the facts from police officers’ perspectives and through their lenses while ignoring citizens’ stories.

Some students would also comment on the courts’ lack of rigor in evaluating police officers’ assertions of facts. Courts are to credit police officers’ training and experience as to what is suspicious and dangerous, and in this way, courts are excused from critically questioning police officers’ leaps in logic when assessing a defendant’s conduct.^[25] Where police officers’ experiences are credited but defendants’ stories are ignored, stereotypes can easily be mistaken for reason. Too often, the courts treat the facts in the same way that the prosecution does in its briefs, with what appears to be a lack of concern for whether what has been labeled as fact is anything more than an assumption potentially rooted in bias.^[26] While claims of suspicion and threat must be specific to the citizen against whom a police officer is acting,^[27] courts rarely challenge the prosecution’s use of proxies for race or loaded word choices (i.e., “suspect,” “evasive,” “high-crime area”) used to justify police actions, but instead make use of this language as well in judicial opinions.^[28]

Admittedly, I felt a sense of accomplishment in introducing students to the law applied in these matters and drawing their attention to how courts approach the review of police and citizen encounters. I was pleased that students had experienced firsthand the inherent advantages and disadvantages afforded to each party by representing both parties over the course of the semester. But recent events have made me realize that my efforts have been too small.

In hindsight, I recognize that while I used legal problems to introduce students to Fourth Amendment jurisprudence and gave them an opportunity to grapple with it as advocates, I took few steps to truly prepare students to question and challenge the law. In teaching law, we are so often backward-looking, perhaps a by-product of the tradition of following case precedent in accordance with the doctrine of stare decisis—what has been sets the stage for what will be. Legal opinions frame the issues, having the potential to confine the conversation on a topic to what is within their four corners. Moreover, as legal writing professors, an important aspect of our role is to introduce students to legal discourse and teach them the practices and conventions of this genre. Upon reflection, I now recognize that while I introduced students to laws that contain deep inequities, I had few conversations with my students about why the law was the way it was or who might be harmed, or served, by the courts’ approach. I had urged students to begin to think critically about the law, but also encouraged them to color inside the lines, signaling that conformity was required for them to become respected legal professionals.

In following the lead of the courts and focusing on what had been written in legal opinions, I too had neglected citizens’ stories by not bringing them fully into the classroom. And in teaching the norms of legal practice, I placed too little focus on challenging students to consider how they might push the boundaries of the law to bring their clients’ stories into their advocacy. I now understand that I must move beyond the confines of legal opinions and modify my approach to teaching if I want to help students become leaders in the legal field—to look forward and seek change, rather than just look back at what has been established and accepted in the law.

Going forward, I plan to talk to students more openly about how the law they are studying connects to the stories they are not only reading about in court decisions, but also hearing about in the news. It is important to discuss the attitudes and experiences that exist across our society and to have students reflect on their own attitudes and experiences as well. Contrary to the images most often depicted in Fourth Amendment case law of non-threatening police and dangerous and suspicious citizens, this summer has brought to light alternative images of citizens as victims and police as aggressors. While all these realities exist, the law routinely recognizes some while ignoring others.

While it is important to introduce students to strategies for how they can still tell a story on their clients’ behalf in the statement of facts when that story is not the focal point of the legal analysis, it is also important to discuss the broader implications of a legal process that marginalizes citizens’ voices. Professors can encourage students to imagine the full breadth of stories that can arise in police and citizen encounters and consider how these diverse stories are treated under the law. Fourth Amendment case law provides that the court is to balance the interests of police and those of citizens in determining the reasonableness of searches and seizures.^[29] Before students dive into the case law and read how the courts have struck that balance, the professor might encourage them to think independently about the perspectives of police and citizens. Students can take a moment to contemplate how they might describe each side’s competing needs. As they look at the situation from a position that is outside of the courts’ limiting framework, students can be prompted to consider their experiences and those of people they know. Professors can also invite students to think about stories they have heard that do not reflect their own experiences.

As they read legal opinions for their writing assignment, students also can be encouraged to pause to reflect on which perspectives are discussed in the courts’ legal analysis and which are not. It is important to take the time to discuss how legal rules can work to a party’s advantage by promoting one party’s stories while ignoring the other’s. For example, what stories are invited into the courtroom when the court is told to rely on police officers’ testimony of what happened as told from their perspectives? And what stories are overlooked when courts are told to defer to police officers’ experiences when police officers make logical leaps that cannot be fully explained? Fourth Amendment law embeds a stock story of a proverbial police officer, who acts based on clear, objective evidence, and is not subject to the influence of racial bias.^[30] Students might consider how legal standards that tap into existing knowledge structures such as this can mask the need for discussions of citizens’ counter-stories of racial discrimination or police aggression.^[31]

It is also important for students to understand the relationship between storytelling and legal decision-making so that they can become more effective advocates. When clients’ stories are marginalized, advocates can lose a valuable persuasive tool. Stories not only share defendants’ experiences with those who are unfamiliar with them, but also counter negative images. Where defendants’ stories are diminished, other stories about people like the defendant, including racial stereotypes, can fill in the void. For example, while the defendant’s story is deemed legally irrelevant, stories told about defendants are front and center in Fourth Amendment analysis. While the defendant’s story is minimized, the defendant is a central character in police officers’ storytelling. Moreover, as the court invokes a reasonableness standard, police are called upon not to establish what the citizen was doing, but rather what they judged the citizen’s actions to mean. This focus on police officers’ perceptions of citizens’ behavior can be particularly troubling where citizens’ actions are ambiguous and subject to interpretation.^[32] In this space, implicit bias can play a role, filling in logical gaps with widespread stereotypes associating black people with criminality.^[33] The telling of counter-stories can begin to disrupt deeply entrenched biases such as those about black criminality.

My hope is that students will leave my course with a greater ability to read the law critically and see what stories are validated in legal opinions and what stories go unnoticed. Having given thought to the range of stories that can be invoked in police and citizen encounters, students should be prepared to make their own assessments about the relationship between courts’ story selection, persuasion, and the development of the law. What meaning has the court given to a citizen’s perceived nervousness? To a citizen’s efforts to move away from police? To the fact that a citizen lives in a given neighborhood? Whose experiences does the court credit? Whose experiences does the court ignore? Students will no doubt read many opinions that fail to consider citizens’ experiences, even as citizens’ stories and the alternative realities that they represent become better known. To help students see what is missing in these legal opinions, the professor can point out the exceptional opinions, including dissents, that acknowledge these perspectives and bring them into the broader discourse of the law.^[34]

This summer has shown us some of the shortcomings of our American legal system—where the law falls short of its stated ideals. In teaching students, we can do more by encouraging students to think not only about how the law currently works, but also where it falters and how it can work better. It is important for students to recognize where our legal system has blind spots, but even more important to help students figure out how they might be addressed. We can teach students how to tell their client’s story, even when there is no space afforded by the law. But even more, we can help empower them to work toward a future where their clients’ stories, and their own stories, matter.