It probably comes as no big surprise to most criminal defense attorneys that Henry Louis Gates, Jr. - Harvard professor, African-American scholar, literary critic, and black man - was arrested for disorderly conduct ("exhibiting loud and tumultuous behavior") during an investigation by police about whether Mr. Gates was "breaking in" to his own home.

Most of us have read probable cause affidavits and police reports involving African-American clients and had a raised-eyebrow moment, when we strongly suspected that, while the stated reason for the stop of our client was "failure to signal a lane change" or some other such minor traffic violation, the real reason for the stop was that our client was black.

Most of us have had many of those moments.

I had one a few months ago when I represented an African-American client who was driving her old, not-very-fancy car in a wealthy, predominantly white neighborhood. She was stopped, allegedly, for failing to make a complete stop at a stop sign. Instead of issuing her a ticket and letting her get on her way, one of the officers, who was white, kept her there for a good while, apparently searching her record. And what did he find? An outstanding warrant.

Jackpot!

The warrant stemmed from a case from 26 years ago involving a $15 bounced check - a check she had written to buy food at a local grocery store that is no longer in business. Apparently, 26 years ago, she missed a court setting related to the case and a warrant was then issued for her arrest. For that transgression, she spent a night in jail, before being released on a personal recognizance bond.

My client is an established teacher at a local school who was in the neighborhood for a school-related fundraising event. She has no criminal record, other than the bounced check. She is devoted to her church and helping the less-fortunate and, ironically, she dedicates a lot of time to her church's prison ministry.

That's partly why the case was subsequently dismissed. (By a very nice white prosecutor, who was probably only 2 or 3 years old at the time the bounced check was written.) He did not hesitate to dismiss the case - and, in fact, went the extra mile and noted on the dismissal that it was "in the interest of justice."

But the officer didn't know all those things about my client when he stopped her. What he knew was that she is black. And from the make and model of her car, he also probably guessed that she is working class. As Brandon M. Terry writes on Huffington Post:

[I]f we can step back and see how easily this happened to someone like Gates, arguably the most famous academic in the country, it should encourage us to be more vigilant about the toll that continuing racial disparities in law enforcement are taking on blacks, particularly the working class and poor, in America. The disproportionate policing of amorphous criminal statutes like "disorderly conduct" and "disobeying the lawful order of a police officer" have served to introduce thousands of otherwise law-abiding people into the criminal justice system.

As goes the policing of statutes like "disorderly conduct," so goes the policing of minor traffic violations. While most traffic statutes might not be as amorphous, the use of traffic stops to investigate "suspicious" people or circumstances - pretext stops - is accepted legally, and more or less falls into the category of "that's just the way the world works."

My client sort of saw it that way - that's just the way the world works. Maybe that's because she's black and she doesn't have money, fame, influence, or power and that really is how the world works when that's your demographic.

But, to her great credit, she also saw what happened to her as an opportunity to better understand the experience of being arrested and incarcerated so she could be more empathetic in ministering to inmates.

Professor Gates is using what happened to him to start a larger, more public dialogue about racial profiling. He's got the platform to do it, and that's great. My client doesn't have that platform, but she still managed to use her experience to help others. She managed to find something good in a very bad experience.

That's not the way the way people usually work, but it's pretty amazing when they do.

posted by Raman Gill   permalink   0 Comments