Law school starts conversation on Floyd, race and policing

The School of Law held a panel discussion last week on the death of George Floyd, the resulting protests for racial justice, and the ways in which law, policing, and race intersect.

The discussion, which took place Thursday afternoon as a webinar with about 150 participants, began with a moment of silence called by moderator Luis Chiesa, professor and director of the Buffalo Criminal Law Center, to commemorate the death of Floyd and other people killed at the hands of police.

From there, Chiesa and two School of Law colleagues — Athena Mutua, professor and Floyd H. & Hilda L. Hurst Faculty Scholar, and Anthony O’Rourke, Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice and director of the school’s Advocacy Institute — addressed how the law overlaps with many issues brought to the forefront by Floyd’s death.

After Chiesa provided an overview of relevant criminal law, O’Rourke discussed why instances of police brutality seldom result in charges against the officers. Prosecutors often use grand juries in fundamentally different ways in police cases, he said, and do so in ways that reduce the likelihood of charges in order to deflect responsibility to diffuse political pressure.

“This gets to the political economy and power dynamics that are behind criminal procedure rules,” O’Rourke said. “Often local prosecutors will be reluctant to bring charges against police officers because the prosecutors rely on those police officers to bring their cases. They have to maintain good relationships with their police departments.

“They’re not well-positioned to be aggressive in those cases against rank and file,” he said, “unless there is some sort of understanding among various political actors that this is an exceptional case. And even when prosecutors try to do the right thing, city governments might undermine the case for fear of civil liability.”

Mutua addressed how some people respond to “Black Lives Matter” with the retort, “All Lives Matter.”  

“An 8-year-old boy once said to me that if all lives really mattered, we wouldn’t have to say black lives matter. He was 8,” she repeated.

“It’s an interesting rhetorical move, sort of like colorblindness,” she said. “… It has a kind of feel-good sound to it … But it’s a lie. It’s a lie in terms of the social reality.

“In this society, nobody is colorblind,” Mutua said. “This society is so racialized, and so racist. Your kids are not colorblind. You are not colorblind. It’s not possible.”

She explained that what these concepts are really mean to do “is reinforce the social hierarchy … the status quo.

“We know in fact today that blacks on every single social and economic matrix fare far worse than most whites … and certainly with regard to arrest, incarceration, the length of sentences that people receive and those who are killed by police officers,” Mutua said.

Chiesa asked the panelists about the popular response to the protests, which has been support for protests, but very sharp criticism of violence and looting.

“Looting and violence is a valid political response to oppression,” Mutua said. “That’s not advocating for looting, and that’s not advocating for violence, but it is saying that it’s a valid response … a tactic, and you have to decide if you’re going to use those tactics.”

O’Rourke added that when people praise the non-violence of 1960s protest movements, it makes invisible much of the violence that occurred, particularly state violence.

 “If you look at some of the images of dogs biting protesters and protesters getting hosed …. those protests involved the subjection of oneself to an incredible amount of violence,” O’Rourke said.

“The way that state violence is being used now, in the form of the police responses to protest, is really telling,” he said. “One reason why this moment is compelling to many people is what it lays bare. And here it is the use of unchecked violence by police” who, O’Rourke added, “are incompletely controlled by the state.”

Finally, Chiesa asked about the meaning and feasibility of protesters’ demands for defunding and/or abolishing the police.

 O’Rourke noted that activists differ in their understandings of these ideas. However, “the real risk of incomplete [state] control of police officers … to my mind … is the most compelling justification for substantially shrinking … the footprint of police departments,” he said.

Mutua posed several questions: “What is the purpose of the police? What kinds of skills do they have? What are they trained to do? Where are the safe neighborhoods? What do they have?”

She suggested that the state has failed to address issues such as homelessness, poor schools and mental health, and has left the responsibility of dealing with the effects of these failures with the police. Police are ill-equipped to address these problems. “What can police do about homelessness?” she asked. “They can go in and tear down homeless people’s tents …”

Defunding the police means both reducing police budgets and removing these and other inappropriate responsibilities, Mutua explained. The money can then be reallocated toward initiatives meant to build “resilient communities.”

If you engage this process, “you may find that you get to a place where you really don’t need that force,” she said.

The panel discussion was called by School of Law Dean Aviva Abramovsky.

“We recognize and understand that remaining silent about the violence and threats to the lives and well-being of Black people is to be complicit in that violence and those threats,” Abramovsky said in announcing the panel discussion. “Together with our Law Alumni Association, we ask that all members of our law school community join us by taking the time to truly understand individuals’ very real struggle for justice and by openly and unequivocally rejecting any and all forms of systematic racism and transphobia.

“Everyone in our community deserves to feel safe and valued,” she said. “Our thoughts are with all individuals who have been impacted by these tragedies.”