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Excerpted From: Portia Pedro, A Prelude to a Critical Race Theoretical Account of Civil Procedure, 107 Virginia Law Review Online 143 (June, 2021) (78 Footnotes) (Full Document)

portiapedroIn response to the uprisings and social movement for racial justice following police officers killing George Floyd, Breonna Taylor, and other Black people, several dozen civil procedure scholars gathered virtually during the summer of 2020 to discuss how to include racial justice and issues of race in our classrooms. While this event was a valiant attempt, it struck me as long overdue.

In this Essay, first, I share a personal experience with police as part of suggesting that Black people's interactions with police might be a source of collective identity and might help us (Black proceduralists, litigators, and scholars of color) to see some of the role of racial subordination within policing and procedure. Next, I describe some of the importance of developing a critical race analysis of civil procedure and briefly discuss some of the reasons that this analysis might be underdeveloped.

I. Interacting with the Police as a Collective Black Experience

My first memory of my father is also my first memory of the police. I was almost five years old when it happened. I was riding as a passenger in my dad's car, a 1977 Dodge Monaco, as my father, who is Black and, at the time, was a bit under 30 years old, was driving. We were on our way to pick up my cousin from preschool. As my dad and I passed his high school alma mater, sheriffs pulled us over. The deputies approached the car with their guns drawn, pointed at us. They made my dad get out with his hands up, made him lay on the ground, and handcuffed him. With the amount of force that they displayed, he was scared about what they might do to me, especially if I surprised them. He told them that his 5-year-old daughter was in the car. Their response to hearing that a child was in the car was to yell out to 5-year-old me, “One move and I'll blow your head off.”

The sheriffs didn't physically harm either of us in that encounter, but our safety was far from guaranteed. When I was older, my parents explained to me that the supposed reason that the sheriffs pulled us over that day was that the prior owner of the car had tampered with one letter of the license plate to make it spell out his name backwards. My dad's Irish friend had used nail polish to make a “1” look like an “I” so the license plate spelled his name (Patrick) backwards. My dad had ordered his own vanity license plate and was waiting on its arrival, but my dad hadn't even realized that Patrick had altered the current license plate. My dad had only had the car for a few weeks at most when sheriffs pulled him over, but (white) Patrick had driven the car with the altered license plates for years without any issues from police or sheriffs. A part of me wonders if some of the reason that the sheriffs reacted with such a show of force toward me and my father when they had not pulled Patrick over for the license plate issue was due to sheriffs' reactions to seeing my Black dad driving a car that, even though it was repainted to be tan and brown, clearly used to be a California Highway Patrol cruiser.

After the sheriffs forced my dad to get out of the car and questioned him, he gave consent for them to search him and the car. On that day--as I sat on the curb, with my legs in the street and watched--I had my first real life lesson on encounters with the police as a Black person. My first lesson of how Black people interact with the police to try to remain unharmed was through this experience and stories of it after.

In separate sheriff cars, they took us both down to the station and harassed him for so long that my next meal came from the station vending machine. As a five year old with no understanding of the context, I remember thinking that the deputies were so nice for giving me that tuna fish sandwich. Because I was hungry. And had no parent or guardian with me. Because they took my dad and I to the station for no reason. Instead of giving him a simple fix-it ticket, they brought criminal charges against him. My parents had to hire a lawyer and pay hundreds of dollars just to get the charges dropped.

I wonder how many other Black children have similar firsts. My father later explained that, as a Black man in a Black, working class neighborhood with his child in the car, he thought that the best and safest way for him to handle the encounter was to give consent to whatever search the police requested. Looking back, I think that he was probably right. Because the deputies stopped us with such a show of force, it is hard to imagine them peacefully accepting a refusal to search. This was my first experience in what would become an oft-repeated role as a Black girl and later woman with Black boys and men (or other boys or men of color). Unfortunately, this type of experience is not unique for Black people in the United States. This interaction (along with many others) is a part of the experiences that I have drawn from as I make life decisions. It informs my scholarship, just as others' life experiences inform their research agendas.

There are so many different directions in which this encounter could have gone. The direction that had worried my father most was that the sheriffs might have hurt or killed one or both of us, as has happened to so many other Black people. There may have been the possibility of criminal charges against the officers in that situation, but, depending on the circumstances and the political reality of the situation, there is a significant possibility that the only legal recourse left would have been civil litigation. But no civil claim against a law enforcement official or department would have been successful unless it survived summary judgment, a civil procedural hurdle.

In a country that is, in part, founded on white supremacy, it can feel like a losing battle to try to identify and counteract the various factors and structures that contribute to Black people being harmed by, or dying at the hands of, police. In looking at one of my own areas of expertise, it is important to understand the ways in which civil procedure encourages and excuses police violence. When someone harmed by police (or the loved ones of someone harmed) brings suit to hold a police officer, a police department, or the city liable civilly (not criminally), the defendant (office, police department, city) may file a motion for summary judgment to ask that the judge decide the case in their own favor. Under Federal Rule of Civil Procedure 56, a judge should grant summary judgment only if there is no genuine dispute of material fact (such that the movant--here, the police officer, department, and city--is entitled to judgment as a matter of law). According to precedent, when deciding a motion for summary judgment, judges must look at the record in the light most favorable to the non-moving party (the plaintiffs who police harmed or whose loved ones have been harmed) and must draw reasonable inferences in that party's favor. Under the doctrine of qualified immunity, police officers, their departments, and the cities for which they work are immune from civil suit--meaning that they aren't liable civilly--in certain circumstances. Qualified immunity protects the defendants from litigation if the officer did not violate a clearly established constitutional right. Through civil procedural decisions against Black plaintiffs harmed by police, the Supreme Court has affirmed lower courts that have granted summary judgment because they found that defendants were protected by qualified immunity even when there was a genuine factual dispute that should have gone to the jury. There might be much more if we dig beneath the surface to critically analyze civil procedure as a tool to reinforce racial subjugation.

A. Black Experiences with Police

Black people report a higher number of interactions with police (including police sightings) than the national average. More contacts between Black people and police means greater exposure of Black people to the “possibility of violence” at the hands of the police. Of reported experiences with police, over 40% of Black people's experiences with police are not positive, while only 25% of white people's reported experiences with police are not positive. Generally, Black people's level of confidence in police differs from, and is lower than, white people's level of confidence in the police more than those groups' confidence levels differ on almost any other social institution. Perhaps in part because of these higher levels of exposure to police, higher levels of police encounters that aren't positive, and lower levels of confidence in police, the Black Census Project reported that, in 2019, “[t]he vast majority of Black Census respondents see the excessive use of force by police officers (83 percent) and police officers killing Black people (87 percent) as problems.” These experiences and perspectives of police are common among many Black people regardless of lines of class, education, and social opportunity. Professor Devon Carbado has shared how his own experiences with the police, even as an elite Black legal scholar, are fraught with “questions [that] are part of black people's collective consciousness.” Recent attention called to police murdering Black people has “presented a readily discernible target around which to organize.” In the context of police killings and other extrajudicial killings of Black people, there is “enough similarity between [our] life experiences ... to warrant collective political action.”

B. Shared Experience with Policing as a Source of Black Collectivity and Mobilization to Support Black Interests and Lives

Personal experiences with, and data on, the policing of Black bodies in the United States may shed light on a collective experience among many Black people and, perhaps, more broadly, many people of color. Policing is one area in which many of us continue to experience racism in similar debilitating and dangerous ways, often regardless of income, level of education, and access to other opportunities. The national spotlight, education, concern, and momentum galvanized by Summer 2020 mobilizations against police killings of Black people provides what may have become an otherwise increasingly rare opportunity for a Black collective identity and action supporting Black lives. Policing seems to be a great equalizer of what could otherwise be a fragmented Black society in the United States. Many of us (Black people) experience interactions with the police similarly to the extent that the experience remains one of collectivity and has become a central part of the essence of what it means to be Black--the ability to be murdered without cause and without redress. This moment of mobilized Black collectivity comes, however, at a time when prior civil rights victories for Black people and other marginalized communities continue to be threatened. A good understanding of the relationship between these two oppositional mobilizations can help anti-subordination litigants, lawyers, and scholars to maximize litigation victories and to minimize losses.

For Black people, this moment--of mobilized Black collectivity with the potential for interest convergence at the same time that past victories are threatened--is rare although not without precedent. A time of strong, shared, collective Black identity with the sociopolitical support to undo our structural subordination is singular, in part, because of the prior meaningful gains in opportunities for some Black people. Much of the formal symbolic subordination of Black people has been illegal and disallowed for longer than my lifetime. As Professor Kimberlé Crenshaw has noted, Black people may have lost much of our collectivity due to the formal reforms of the civil rights victories. The reforms of the civil rights movement made it so fewer Black people experience racism in collective ways that are similar to each other. This is particularly true for Black people with greater access to capital than others. The formal end of the apartheid regime in the United States left Black people more fractured because those reforms let some of us improve our material situations much more than others.

While many of the current efforts to protect Black lives will aim at changing police training, defunding police, or abolishing police, much of this effort inspired by the Movement for Black Lives will also aim at compensating Black people and our families through the legal process. Historically, demands of movements inspired by Black collective identity are not typically limited to ending one singular condition or phenomenon (such as police murders of Black people), but also traditionally insist on the inclusion of Black people in the U.S. “political imagination,” even beyond policing.

[. . .]

Some may believe that civil procedural standards operate in a neutral, identity-free zone and that judges don't care about litigants' identities, or their positions within the sociopolitical hierarchy, when deciding procedural issues. But judges are not oblivious to racial identity or its proxies in procedural decisions any more than they are in substantive contexts. Even the perception of, or the attempt to be, oblivious to identity could be another way to allow harmful assumptions to thrive.

Interaction with police cuts across socioeconomic differences within the Black community. We are still at risk of being murdered in extralegal ways. An important step in actualizing some of the goals to protect Black lives is to understand, and work to undo, the ways in which civil procedural doctrine and mechanisms have been deployed to reinforce racial subordination (and the subjugation of other marginalized groups).

Associate Professor, Boston University School of Law.

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