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The Trials of the Millennium | The Nation

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Diary of a Mad Law Professor

The Trials of the Millennium

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As New York City braces itself for the trials of two sets of police officers accused in the injury of Abner Louima and the death of Amadou Diallo, perhaps it's time to cull a list of things we have learned from the last decade of sensationally racialized "trials of the century."

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Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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From Bill de Blasio to Eric Holder to Barack Obama to #BlackLivesMatter, right-wing pundits are blaming everyone and everything but the obvious.

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(1) It is important to keep the facts and faces straight. Remember how the media kept embarrassing themselves by mixing up Yusuf Hawkins, the victim in the Bensonhurst beating, with Yusef Salaam, one of the defendants convicted in the Central Park jogger case? So let us not forget: Abner Louima is the Haitian immigrant who was tortured with a plunger. Amadou Diallo is the Guinean immigrant who was shot at forty-one times. Similarly, Patricia Anne Williams, a black woman, is the judge in the Diallo case. Patricia J. Williams, a black woman, is the mad law professor.

(2) Let us keep our collective eye on the constitutional ball. The Fourth Amendment is a guarantee against unreasonable searches and seizures; it is not Letitia Baldrige's guide to good manners. We should have learned that after the deaths of Eleanor Bumpurs and Anthony Baez or after the round of police "incivilities" in Washington Heights that led to the Mollen Commission report documenting far too many instances of deadly police excess. One of the most visible official responses at that time was to paint police cars with the inscription "Courtesy, Professionalism, Respect." In the wake of the Diallo shooting, Mayor Giuliani's most aggressive "reform" thus far has been to issue little palm-sized cards to officers, reminding them to say "please," "sir" and "thank you." Police Commissioner Howard Safir defended the gesture, saying that most complaints "are not of officers being brutal but of officers being brusque." I have nothing against such social niceties. But I am reminded of what Lewis Carroll's Walrus had to say--"It was so kind of you to come! And you are very nice!"--as, armed with knife, fork, vinegar and pepper, he tucked into the "dear" oysters.

(3) In a closely related vein, let us not confuse a police state with police power. The judicious exercise of police power is a good thing. The no-holds-barred, capitulation-or-else mentality of a police state is a bad thing. Sometimes the wolf of the latter tries to pass itself off in the sheep's clothing of the former. But even the most agreeable deflections by an amiable citizenry to gentlemanly gendarmes cannot make up for a basic lack of probable cause. Commissioner Safir got caught in such an ellipsis in his description of a recent meeting with a group of high school students in the South Bronx: "Most of the students reported having been stopped by the police for questioning. Many said that the experience had not been any more than an inconvenience." But the issue is not the emotional thermometer of individual citizens--as in the film Little Shop of Horrors, you can always find someone who outright enjoys a root canal with a rusty drill. The issue is the proper exercise and limit of state power. And Safir's description leaves unanswered the question of whether the police had probable cause to stop "most" of those students. An illegal detention is an illegal detention no matter how gracefully executed.

(4) Let not Bernhard Goetz, the "subway gunman" who shot four unarmed black teenagers, be our role model. One of the enduring problems with his defense, albeit successfully employed, is that it rationalizes paranoia. "I was once mugged by a black person," is the gist of what Goetz asserted, "and therefore it's OK to shoot repeatedly the next time a black person approaches me aggressively." If a black person spoke such madness about a white person, most people would condemn it as the kind of rhetoric likely to incite race wars. Yet quite a number of otherwise respectable lawyers and social commentators have staked their careers upon not merely defending but formalizing--as in "the Goetz defense"--precisely such "rational racism." This in turn has spawned the logically illogical civic companion to that paranoia: a sadly pragmatic but distinctly antidemocratic hypervigilance within minority communities, exemplified by the efforts of One Hundred Blacks In Law Enforcement, an organization that offers classes to black citizens in how to avoid being shot "accidentally"--i.e., in how not to question being stopped or arrested, in how not to reach for identification suddenly, or for that matter slowly, in how not to show any "attitude." In short, the gestural language of submission. This should give us pause.

(5) Finally, we must use statistics carefully. In hearings before the City Council, the NYPD has defended the Street Crime Unit's record of frisks in targeted neighborhoods by arguing that the percentage of blacks among those stopped (63 percent) is proportionate to the percentage of actual arrestees who are black (68 percent). Assuming that this is true (there have been allegations that the unit has underreported the number of stops actually made), then one suspects that this is good news. One can do no more than suspect, however, because the real meaning of those figures depends on knowing more. To illustrate, let's say that in a given precinct two-thirds of the population is black. If three arrests are made and two of them are black, this is neatly proportionate. If, in the hunt for those three, nine people were stopped and frisked, six of them black and three white, this too is nicely proportionate. But none of this tidy data reveal whether the stops were for "an articulable reason" as required by law. Indeed, during 1997 and 1998, the Street Crime Unit alone searched 45,000 New Yorkers as an agreed minimum, at least 35,000 of whom had committed no crime and were never arrested. When pressed about how many of the reports of those stopped specified a legally sufficient reason, the New York Times quoted an unnamed police official's laconic reply: "It doesn't look good."

"'O Oysters,' said the Carpenter,/'You've had a pleasant run!/Shall we be trotting home again?'''/But answer came there none--"

We've been down this road before. We can do better this time around.

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