On Tuesday, I read "Leading Change," a mass email which arrived in my in box that morning. It was another in a series of recent lawyerly declamations about racism and injustice. Its author was William C. Koch, Jr., president of the American Inns of Court. It read:
It went on like that.
I wondered what the average recipient's elapsed time of reading Mr. Koch's statement might be. Mine was about 20 seconds. I hit delete.
The mass of lawyers know better. We are not the problems of racism and injustice. But we are the biggest part of those problems. Let me explain.
"The founders of our nation" — please. Several of the framers of the federal Constitution were lawyers. Several also were slave-owners. Acting together, they baked federal protection of the slave trade and slavery itself into the Constitution. The fallout is still with us 232 years later. Nice going, founders.
"Protecting the powerless"? The most esteemed and well-paid lawyers of their times tirelessly petitioned legislatures and judges to squelch abolition and expand slavery into the territories. A lawyer, Abraham Lincoln, persuaded Congress to outlaw slavery, in 1865. But, afterward, generations of lawyers created Jim Crow laws, enforced them, and defended them from court challenges. They kept black Americans off juries and out of polling stations. They barred them from testifying in court even in their own defense. One county enacted an ordinance imposing a penalty for lynching. It was payment of $100 to the county where the victim resided.
In the 1960s, lawyers issued ringing denunciations of the civil rights laws with righteous passion and high-sounding oratory.
If you doubt this, listen to the audio of the oral argument of attorney Moreton Rolleston, Jr., at the Supreme Court in Heart of Atlanta Motel v. United States in 1964. The issue was whether the federal government had the power to require Rolleston's client, an Atlanta motel, to rent rooms to black travelers against its will. As the hearing winds down, the justices seem skeptical. Rolleston's voice rises with indignation. Perhaps sensing he has already lost, he yells at the justices. He denounces the very idea that the law could possibly require letting paying black Americans sleep in a rented room.
Rolleston, a prominent lawyer, lost that day. But I expect he went home full of pride that, in front of the highest court in the land, he had displayed advocacy skills of which his mentors and law professors would have been proud.
In 2006, I sued police officers for civil rights violations inflicted on my client, Bernard Miller, during an early-morning arrest at a motel in the Simi Valley. The ostensible reason for the arrest was Bernard's resemblance to the "El Torito Bandit." The bandit liked to stick up restaurants after closing time in Los Angeles County. The sketch artist's image of the mysterious man shown in the LAPD composite sketch bore zero resemblance to Bernard, with one exception: both men were black.
Soon after the bandit struck again, a motel clerk told police that Bernard had checked into a room along with two other people. Six officers descended on the room. With weapons drawn, they arrested Bernard. They subjected him to a lengthy and humiliating search. Bernard feared the officers would shoot him or beat him.
In the end, they let Bernard go. There were no charges, of course. The police never caught the "El Torito Bandit."
Afterward, our noble profession and legal system let Bernard down. The police lawyered. There was no mistaking what the law firm was there to do: trivialize what the officers did, invoke qualified immunity on their behalf, and prevent by any means permissible the payment of a dime to a young man whom their clients had deeply traumatized. At a summary judgment hearing, Judge Virginia Phillips denied the officers qualified immunity. Bernard and the officers would have to face a jury, she said.
It was a fleeting victory.
On the day of oral argument at the 9th U.S. Circuit Court of Appeals, Bernard sat in the front row of the gallery. The senior judge on the panel was Andrew Kleinfeld of Alaska. Kleinfeld either didn't recognize Bernard as the plaintiff or didn't care that he was present in person. "Nice people aren't out at 2 o'clock in the morning," Kleinfeld said, twice, distinguishing himself from Bernard Miller. "They're home and in bed."
Kleinfeld authored the unpublished decision that came out soon afterward. He ruled that the officers had qualified immunity after all. We had lost and the police had won. Kleinfeld had gratuitously added insult to the injury.
The people who made it all possible, of course, were lawyers, the "champions of reason and civility." They would tell you that they were doing their duty. I would agree with them. They would also tell you that, of course, justice had prevailed. I expect they got high-fives from their clients. In professional skill and propriety, they had deeply distinguished themselves. None of them was a racist, of course.
And yet. If you could sum up what they told Bernard Miller in one sentence, it was this:
Only none of them said, "Sorry."
No one says, "sorry," either, to the white victims of police brutality.
One of them, the late Kelly Thomas, was from my home town, Fullerton. Kelly was a paranoid schizophrenic. Mostly, he lived on the street, near the train station. One night in 2011, police responded to a call about someone breaking into parked cars. When the officers approached, Kelly seemed evasive and uncooperative. The officers wanted to search him. Kelly was unarmed, and he didn't try to fight the officers. But he didn't want to be searched, either. So the officers kicked and beat him. They used fists, a Taser, batons. Their names were Manuel Ramos and Jay Cicinelli.
In the surveillance video, Kelly can be heard screaming in pain and crying out for his father. He died five days later in the hospital. Looking at a photo of Kelly in his hospital bed reminds me of Sharon Tate or one of Charles Manson's other victims that night at Cielo Drive.
It seemed like an open-and-shut case of police brutality. But Ramos and Cicinelli lawyered up. They weren't racists. They were just murderers with badges and guns. At their murder trial, their lawyers won Ramos and Cicinelli acquittals. Those lawyers were just doing their jobs too.
These days, no one talks about Kelly Thomas. Except in Fullerton, his name has been forgotten. But he is as dead as George Floyd, and got about the same amount of justice as Floyd did.
Can you think of a disgraceful episode in U.S. history that was not either designed by lawyers or defended by them with a straight face afterward? Choose your favorite outrage. Bondage. Jim Crow. The internment of Japanese-Americans. Oppression of women and gays. Torturing prisoners under interrogation.
We lawyers enabled every one. So don't tell me how wonderful it is, because it isn't.
Enough with rhetoric meant for public consumption and our own glorification. Maybe we can do something worthwhile. At the same time, we can help our profession live down its checkered reputation, one which is well-deserved.
➽ Dan Lawton is a lawyer and writer in California.
The founders of our nation ... understood that liberty under the law is the finest way of life humanity could imagine ... Lawyers, like the courts themselves ... are the protectors of the powerless ... We will encourage all members of our noble profession to look to change, to look to improvement, and promote equal justice under the law...
It went on like that.
I wondered what the average recipient's elapsed time of reading Mr. Koch's statement might be. Mine was about 20 seconds. I hit delete.
The mass of lawyers know better. We are not the problems of racism and injustice. But we are the biggest part of those problems. Let me explain.
"The founders of our nation" — please. Several of the framers of the federal Constitution were lawyers. Several also were slave-owners. Acting together, they baked federal protection of the slave trade and slavery itself into the Constitution. The fallout is still with us 232 years later. Nice going, founders.
"Protecting the powerless"? The most esteemed and well-paid lawyers of their times tirelessly petitioned legislatures and judges to squelch abolition and expand slavery into the territories. A lawyer, Abraham Lincoln, persuaded Congress to outlaw slavery, in 1865. But, afterward, generations of lawyers created Jim Crow laws, enforced them, and defended them from court challenges. They kept black Americans off juries and out of polling stations. They barred them from testifying in court even in their own defense. One county enacted an ordinance imposing a penalty for lynching. It was payment of $100 to the county where the victim resided.
In the 1960s, lawyers issued ringing denunciations of the civil rights laws with righteous passion and high-sounding oratory.
If you doubt this, listen to the audio of the oral argument of attorney Moreton Rolleston, Jr., at the Supreme Court in Heart of Atlanta Motel v. United States in 1964. The issue was whether the federal government had the power to require Rolleston's client, an Atlanta motel, to rent rooms to black travelers against its will. As the hearing winds down, the justices seem skeptical. Rolleston's voice rises with indignation. Perhaps sensing he has already lost, he yells at the justices. He denounces the very idea that the law could possibly require letting paying black Americans sleep in a rented room.
Rolleston, a prominent lawyer, lost that day. But I expect he went home full of pride that, in front of the highest court in the land, he had displayed advocacy skills of which his mentors and law professors would have been proud.
In 2006, I sued police officers for civil rights violations inflicted on my client, Bernard Miller, during an early-morning arrest at a motel in the Simi Valley. The ostensible reason for the arrest was Bernard's resemblance to the "El Torito Bandit." The bandit liked to stick up restaurants after closing time in Los Angeles County. The sketch artist's image of the mysterious man shown in the LAPD composite sketch bore zero resemblance to Bernard, with one exception: both men were black.
Soon after the bandit struck again, a motel clerk told police that Bernard had checked into a room along with two other people. Six officers descended on the room. With weapons drawn, they arrested Bernard. They subjected him to a lengthy and humiliating search. Bernard feared the officers would shoot him or beat him.
In the end, they let Bernard go. There were no charges, of course. The police never caught the "El Torito Bandit."
Afterward, our noble profession and legal system let Bernard down. The police lawyered. There was no mistaking what the law firm was there to do: trivialize what the officers did, invoke qualified immunity on their behalf, and prevent by any means permissible the payment of a dime to a young man whom their clients had deeply traumatized. At a summary judgment hearing, Judge Virginia Phillips denied the officers qualified immunity. Bernard and the officers would have to face a jury, she said.
It was a fleeting victory.
On the day of oral argument at the 9th U.S. Circuit Court of Appeals, Bernard sat in the front row of the gallery. The senior judge on the panel was Andrew Kleinfeld of Alaska. Kleinfeld either didn't recognize Bernard as the plaintiff or didn't care that he was present in person. "Nice people aren't out at 2 o'clock in the morning," Kleinfeld said, twice, distinguishing himself from Bernard Miller. "They're home and in bed."
Kleinfeld authored the unpublished decision that came out soon afterward. He ruled that the officers had qualified immunity after all. We had lost and the police had won. Kleinfeld had gratuitously added insult to the injury.
The people who made it all possible, of course, were lawyers, the "champions of reason and civility." They would tell you that they were doing their duty. I would agree with them. They would also tell you that, of course, justice had prevailed. I expect they got high-fives from their clients. In professional skill and propriety, they had deeply distinguished themselves. None of them was a racist, of course.
And yet. If you could sum up what they told Bernard Miller in one sentence, it was this:
White police officers are within their rights to point their guns at you, an innocent black man, arrest you falsely and without probable cause, humiliate you deeply, and avoid a jury trial over what they did. Sorry.
Only none of them said, "Sorry."
No one says, "sorry," either, to the white victims of police brutality.
One of them, the late Kelly Thomas, was from my home town, Fullerton. Kelly was a paranoid schizophrenic. Mostly, he lived on the street, near the train station. One night in 2011, police responded to a call about someone breaking into parked cars. When the officers approached, Kelly seemed evasive and uncooperative. The officers wanted to search him. Kelly was unarmed, and he didn't try to fight the officers. But he didn't want to be searched, either. So the officers kicked and beat him. They used fists, a Taser, batons. Their names were Manuel Ramos and Jay Cicinelli.
In the surveillance video, Kelly can be heard screaming in pain and crying out for his father. He died five days later in the hospital. Looking at a photo of Kelly in his hospital bed reminds me of Sharon Tate or one of Charles Manson's other victims that night at Cielo Drive.
It seemed like an open-and-shut case of police brutality. But Ramos and Cicinelli lawyered up. They weren't racists. They were just murderers with badges and guns. At their murder trial, their lawyers won Ramos and Cicinelli acquittals. Those lawyers were just doing their jobs too.
These days, no one talks about Kelly Thomas. Except in Fullerton, his name has been forgotten. But he is as dead as George Floyd, and got about the same amount of justice as Floyd did.
Can you think of a disgraceful episode in U.S. history that was not either designed by lawyers or defended by them with a straight face afterward? Choose your favorite outrage. Bondage. Jim Crow. The internment of Japanese-Americans. Oppression of women and gays. Torturing prisoners under interrogation.
We lawyers enabled every one. So don't tell me how wonderful it is, because it isn't.
Enough with rhetoric meant for public consumption and our own glorification. Maybe we can do something worthwhile. At the same time, we can help our profession live down its checkered reputation, one which is well-deserved.
➽ Dan Lawton is a lawyer and writer in California.
Dan - thanks for publishing this piece here. It certainly adds a new dimension to how we see the history of racism. I remember the Kelly Thomas killing well. My wife and you share the same home town!
ReplyDelete