Darius Charney | Lawyering for Racial Justice

Darius Charney | Lawyering for Racial Justice

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We’re going to go ahead and– hello, everybody– and going
to go ahead and get started. Given that we are incredibly
privileged to have with us here today Darius Charney,
who is a senior staff attorney at the Center
for Constitutional Rights, so CCR in New York. We’re very grateful to
have Darius here today, including because,
he had to reschedule, given the demonic snow storm
in New York City a few weeks and so thank you again, Darius,
for your flexibility in that. We are very grateful
that you’re here. Darius will talk to us
today about lawyering for racial justice. So really thinking
through what are the different legal
strategies that can be pursued in seeking
to have accountability around racial injustice. But also how it more interacts
with social movements and other strategies that
we utilize as lawyers when we think about
bringing about change to mass racial inequality. The event is the final, which
is very hard to believe– final event in our human
rights in practice series, a series [? quoted by ?]
my colleague, Professor [INAUDIBLE]. And so again, that’s
another reason why we’re very grateful
to have you here. The practice series
is co-sponsored by the International
Human Rights Clinic. I should mention that I direct,
my name is Jane Huckabee– but it’s also organized
in collaboration with the Center for
International [INAUDIBLE].. We’re very happy to have
Professor [? Hofstead ?] here, who is one of the
co-directors of that center. In addition, the
particular event we have cosponsors, including
the Black Law Students Association, the Duke Human
Rights Center, the Franklin Humanities Institute, the
Duke Human Rights Center, at the Kenan Institute for
Ethics, International Law Society, and the Human
Rights Law Society. With that, I’m
going to hand over to Darius, who will speak
and make a presentation, and then we’ll open up
[INAUDIBLE] interactive and rebuffed Q and
A. Thank you, Darius. Thank you so much for having me. I’m very pleased to be here. I’m actually a
undergraduate alumnus of this fine institution, class
of 1995, so go, Blue Devils. So as the professor
mentioned, I’m going to talk to you guys a
little bit about lawyering for racial justice, particularly
how we at CCR view it, which you may, through my
remarks, and the Q and A, find out is similar,
but in some ways different than some of
the other civil rights organizations that may
do this kind of work. Obviously, this is
work that is done by a lot of
fantastic [INAUDIBLE] around the country
and the world. But we all bring our
own approach to it and we learn from each other
and collaborate and hopefully, through this discussion we
would see some of the ways that we view it at CCR and
how you guys [INAUDIBLE] you guys in your legal careers. [SIDE CONVERSATION] So the reason I chose this photo
to start with is because this– I’m sure everybody
recognizes many of the people these photos– but these photos
I think, actually, if you think about the
time when they were taken, really span the history at CCR. We were founded in the mid-60s,
specifically representing [INAUDIBLE] the south. And throughout our
history, we have continued to work very closely
with folks on the ground, doing work [INAUDIBLE] racial
justice both here in the south and around the country and, in
some cases, around the world. So I think this captured in many
ways, our historical commitment to these issues. Everybody, I’m
assuming, in this room, knows the legendary Ella Baker. We at CCR had a very long and
close relationship with her during her lifetime. This quote, I think,
also was something that I really think about
a lot when I do my work. And I think the reason this
quote means a lot to me as a civil rights lawyer,
as a human rights lawyer, is I think, similar
to civil rights leadership, in terms of thinking
about not only the folks who are interested in being
leaders of a movement, but developing
leadership in others. I think as lawyers, one thing
that we need to think about is that what the movement
needs most is not necessarily lawyers
who are going to take charge of
the movement or try to lead in a
particular way, but we need lawyers who are
going to help develop the folks in the movement to do
what I think is the real work. Things to keep in mind. I think as you think
about lawyering around the issues of racial
justice are, first of all, litigation is a complement
to and can never be a substitute for the
grassroots organizing, the education, the legislative,
and other strategies, which, in our view, is really
where the real work happens, where the real change happens. And similarly, even when you
do talk about litigation, lawyers don’t have
all the answers. And I’m going to give you
a specific example of that in a couple of minutes to
show you why that is true or why that can be an issue
if we don’t remember that. Another thing, which I think
is not news to anybody, courts are conservative
and by that, I don’t necessarily
mean, ideologically, although, of course, I
think, in the United States they tend to be
ideologically conservative. They are very conservative in
the way they view their role, I think, in bringing
about change or bringing about political,
economic, social change. And they view their
mandate and their authority very conservatively. And I think that
becomes an issue. Because when we’re
talking about the issues around racial
injustice, we’re talking about very systemic,
deep-seated, longstanding issues that
are going to require really profound changes. And that’s really
where courts are not only are not that necessarily
equipped to do it, but are very hesitant
to go with those ways. And then the
importance of history. And I think that again
will become clear– I’m sure already
clear– that if you– but it will become clearer
as I talk through some of the examples of the cases
and projects we’ve worked on that we definitely not only
have to learn from history and learn from our mistakes in
our past work, but actually, in a way that we discuss
the issues and the narrative and developing and changing
the narrative, I think, history is a very important
tool, an important part of that project. And then, lastly,
what I think we as racial justice lawyers have
to always remember and think about is, does the
litigation or the legal work we’re doing help impacted
communities build power. And that’s, I think, goes
back again to the Ella Baker quote that, I think
the goal is not for us to lead
the movement, it’s for us to create the space
to allow others to lead the movement, the
folks on the ground because they’re the ones who
are going to do the real work and, I think, bring
about the real change. So when we talk about
power and building power amongst grassroots groups
directly impacting communities, we, I think, as lawyers,
should think about it in three buckets,
pillars, if you will. One being the pillar of policy. Another the pillar
of consciousness. And the pillar of service. And I’m going to give
you a specific example in a couple of minutes of how
that was applied in a case project that we worked on up in
New York City around the police department there. Pillar policy is obviously
has to do with bringing about policy changes. Pillar of consciousness, I
think, goes to this issue I was talking about before of
a narrative, the story taking control of the narrative and
how the issue of the problem gets discussed. And, of course, I
think, very often, the people most
directly impacted are not the ones who are
controlling the narrative and so [INAUDIBLE] help them
take control of that narrative and give them the
ability to feedback. And then, lastly, the
pillar of service. I think as lawyers,
we need to always remember, first and foremost,
that we are providing legal services to our
clients, whether that’s a grassroots organization
or an individual. And so, we always
have to keep in mind that what we are trying to
do is what our clients need and what they want, even if
you might have a different idea about what that would be. And that if you’re working
on all three of these pillars and keeping these in
mind, the goal would be, if you’re advancing
each of these pillars, you will also be building power
amongst the directly impacted folks around whatever issue
it is you’re working on. A couple early
examples, I’m not going to talk too much about these
but you can read more about them on our website. When I mentioned earlier
that CCR is really very at work in this area, it goes
back to literally our founding. That is literally true and
1966 was when CCR was founded. And is also the year that the
case, Hamer versus Campbell and obviously, Hamer
is [INAUDIBLE].. Hamer is one of the first cases,
federal court cases, which applied the Voting Rights Act. I think that’s the Fifth
Circuit case in 1966. That was a CCR case. North Carolina
versus Joan Little. Do folks know this case? I’ve found that a lot
of people don’t know it. Yeah, so it’s really
important and really fascinating and
fantastic case involving African-American
woman, Joan Little, was arrested out in, I
think, Beauford County, North Carolina in
the early 1970s. While she was in jail,
awaiting trial, she was– the prison guard, or
the jailer, jail guard, attempted to sexually assault
her while she was in jail. She stabbed him in
self-defense, killing him, and was charged with
murder for that. And CCR co-counsel, with
some local attorneys, were able to get the venue
change from Beauford County to, I believe, Raleigh
County, if I’m not mistaken, to get a much less
racist jury, to be frank. Ultimately, Miss
Little was acquitted. But beyond that,
the reason I think this case is very
fascinating is the movement that built up around it. And it really is a movement
that’s very connected to, I think, the history
of, particularly, black women, going back
to slavery and Jim Crow, combating and resisting
sexual violence. And there was a direct link
between the case and the way the case was talked
about and really all of that organizing,
which goes back decades, if not centuries. And so again, this
was a case which CCR– obviously, it was a legal
case, a criminal defense case, but thinking about how to
connect to the larger movement was something that
was really happened to bring them together. And I think it is in no
small part contributed to the ultimately
successfully legal outcome. Daniels versus City
of New York is a case which I came in on the end
of it because it really went on for about eight years. But this is really the
beginning of CCR’s work in New York around the
stop-and-frisk issue. 1999 was the year that Amadou
Diallo was shot by the NYPD. I don’t know, folks,
some of you are probably too young to remember that. But Mr. Diallo was an
immigrant from, I believe, Guinea in West Africa. He was a street vendor. He lived in the Bronx in New
York City and in February off 1999, coming home
from work late one night, he was shot 41 times by New
York City police officers, plainclothes police officers. He was unarmed. They shot him when he was
entering his building. They told him to freeze. And they said turn around. He did so. He held his hands up. He was holding his
wallet in his hand. And the police, they say
they mistook that for a gun, shot him 41 times. Obviously, there was a
huge outrage, not only in New York, but really,
around the world from this tragic incident. And a lot of the
police accountability grew to New York. We’ve been working on
these issues going back into the 1980s. Met at CCR, I believe
it was about a week after Mr. Diallo was killed. And CCR lawyers were there. And there was a
discussion about what could be done to address what
was a specific issue, which was racially biased brutalized
policing of communities of color in New York that
had really been going on, obviously, in some form
or another, forever. But particularly
in the 1990s, when you saw the explosion of
zero tolerance policing, that was when Rudolph
Giuliani and Bill Bratton came into power
and really decided that they were going to
aggressively and proactively, as they said, police communities
of color at the city. And what happened to Mr.
Diallo was a natural result and tragic result of that. And so the discussion
was we want to really go to the root
of the problem here. And so what was decided
on was that there was going to be a class
action lawsuit this case filed on behalf of
several of these groups and individual members of these
groups who had been stopped and frisked repeatedly by
the same police officers, the same unit of the
police department, that killed Mr. Diallo. It was a street crimes
unit, which had been around since the 1970s. And it was, by that
point, notorious for being just incredibly
aggressive and abusive in black and brown
communities in the city. And so this lawsuit was going
to challenge their stop, question, frisk
practices under both the Fourth and the
14th Amendments, alleging that they
were stopping people without reasonable
suspicion, which is the standard under the Fourth
Amendment, which permits in under the Terry case. And that also was being done
in a racially biased way and therefore violated the
Equal Protection Clause. The case, as many federal
lawsuits tend to do, went on for several years,
dragged on one would say. And of course, during
the time that it was proceeding through
the court, 9/11 happens. And I think that had a
very significant impact on the police accountability
movement, both in New York City and nationally. Because I think
that’s a place where the narrative around law
enforcement, police, liberty, security, the narrative changed. And so that happened 2001. I think there was
also, obviously, a lot of abuses in terms of
what was being done particularly to the Muslim, South
Asian, Arab community. And so a lot of focus,
attention, and efforts were being diverted that way. And so unfortunately
in the early 2000s, you saw an ebbing of momentum
when it came to issues around racial profiling. [INAUDIBLE] black
and Latino folks. And the stop and
frisk issue, there was a lost momentum in
the grassroots police accountability
community in New York. But that was a problem when we
talked about the litigation. Because whereas when
the case started, we had NCPRR, which is the
National Congress of Puerto Rican Rights, that gentleman
in the picture, Richie Perez, was the founder of
that organization. They were initially one of
the organizational plaintiffs. They dropped out of the case. The connection and
communication line between the lawyers and
the grassroots folks really fell apart a little
bit for a variety of reasons. So what ended up happening
is, by the time we get to 2003 and the city finally
says, OK, we’re open to talking about
how to settle this case, how to resolve it,
the grassroots folks did not have a
seat at the table. You just had a traditional
settlement negotiation between lawyers and lawyers
for the plaintiffs and city lawyers. And so what you ended up
with was a settlement that, because it was negotiated
only by lawyers, was very limited in
scope and really was just about changing things on paper. This picture here, they
had to actually write a department policy
regarding racial profiling. The policy did prohibit
racial profiling. But it was very cursory, very
superficial, didn’t really say anything other than you
can’t stop somebody solely on the basis of race. There were really no
procedures for how they were going to monitor this
or monitor compliance or make sure it wasn’t happening. And so what you end up with
is over the next four years, because the settlement was
in place for four years, is– go to that second– you have
an explosion of stop and frisk in New York. From 2002 to 2006, I
think the number of stops increases about 500%. The racial disparities continue
to be extremely severe. More than 85% of all the people
stopped are black and Latino. And this is in a city where
those two groups make up about 50% of the population. 90% of the stops don’t
uncover any evidence of criminal activity. Only about 1% of the
stops find a weapon, which is the only purpose of a
frisk is to search for weapons. And they’re only finding
weapons in 1% of the stops. So what ends up happening
is that by 2008, CCR, again, consulting with
some of our colleagues in the police accountability
movement say, well, what should we do? Because the settlement
didn’t change anything. And they said, well, can
we bring a new lawsuit? And that’s actually what we did. Which is the Floyd
case, which some of you may be familiar with. In my understanding,
it’s read in law schools, which is kind of cool. But this case really
expanded on the Daniels case. Because now instead of
challenging the stop and frisk practices of one particular
unit in the police department, we challenged the practices
of the entire department. Because by that
point, it was clear that this was a
city wide problem. It was a department
wide problem. It was getting worse. And like Daniels,
the case really built on the
grassroots organizing that have been going
on around these issues for many, many years. And by this point,
2008, 2009, that ebb I was talking about
earlier was coming back up. You had many of the
groups that weren’t involved in the movement. Since the 80s, we’re
regularly meeting again. CCR was going to
those meetings, too. And so we really felt
like it was the right time to really push
this forward again. And this time, in
partnership with our partners and colleagues in the
grassroots police accountability movement in New York City. We had four named plaintiffs. Two of the four were individual
members of these organizations, including the gentlemen
there, the lead plaintiff, David Floyd, who was a member
of the Malcolm X Grassroots Movement. It’s a national organization. But the New York
City chapter had been involved in these issues
going back to the mid-1980s. And we also had two non-activist
New Yorkers of color who themselves had been
repeatedly stopped and frisked and decided to get
involved in this case. Because they didn’t
want this to happen, not only to them, but to their
family and friends anymore. And they wanted to see change. The case was really
about injunctive relief. There were no damage claims
on the half of the class. And unlike the Daniels
case, this time, we made a very
concerted effort to try to work with our partners
in the grassroots community, to make the litigationing
and organized hook for our allies
that would support the work they were doing. Now, as with any case or
project that really involves structural institutional
racism, you’re dealing with a
powerful adversary. And in this case,
the NYPD I think was about as powerful
as they come when it comes to police agencies. Broken windows is really the
dominant policing philosophy in the United States, if not
the world by this point, 2008. And it really started for
the all intents and purposes in New York City, at
least on a systemic level. It’s a police department that
has a multibillion dollar budget, has very powerful allies
in all levels of government. This is the Obama
administration that this case was litigated under. And there’s very
many powerful allies in the Obama administration. And they’re a really ruthlessly
effective media machine. They even had their
own newspaper, which is known as the New York Post. Even now, if you read the op-ed
page in the New York Post, you will never see an op-ed
that is ever critical of the New York police department. You will see
repeated op-eds that are incredibly,
effusively praising but never the other way. And flip side is there are
many articles, not only demonizing civil
rights activists, but really demonizing
people of color. I like to say, the
only time you’re going to see a person of color
on the cover of New York Post is if they’ve done
something illegal or there’s some scandal. You’re never going to
see positive coverage of those communities. So then coming
back to the pillars again, in this particular
case, we really, again, I think made a very
concerted effort to try to work on
each one of these. Pillar of policy,
obviously, I mean the case was seeking injunctive relief. But beyond that, the
work went both ways. I mean, we obviously
were doing the work and trying to provide support
to the community folks. But the community
folks were really directly supporting
the litigation in very concrete ways. They filed several amicus
briefs at different junctures of the case, which were
incredibly helpful. I mean, they were cited
by the court in decisions. I think a classification
at the post trial phases, they submitted a
post trial brief. And then also when we were
in the Second Circuit trying to oppose a state that the
city was trying to get after. We were victorious. There were I think something
like 37 declarations put in by community
groups explaining why a state would be disastrous. Unfortunately, Second
Circuit didn’t listen. But that’s a whole other story. And then I think
most importantly, the remedy which the court
ordered after we went to trial and after we won, the remedy
that the court ordered specifically carved out a
role for community groups to give direct input
into the reforms that the court would
then order, which I can talk more about in the Q&A. But that was really something
that we pushed very hard for. And I think if it wasn’t for
the involvement of these groups throughout the
life of the case, I don’t think the
court would have been convinced that was a good idea. But because they had been
so involved with filings, with coming to court literally
every day for nine weeks, we had a packed
courtroom, that that had an impression on the judge. And so she felt,
I think, that it was really important to involve
them in designing the remedy. Which again, when you think
about the Daniels cases, that didn’t happen. So that was very
important to us. And then when we
talk about, I think, the pillar of
consciousness, I think there were two very
important ways that we tried to move that forward. And one being, I think,
the media strategy. And there were certain
points in the case where one being an
op-ed, which I’m going to talk about
in a second, but also in the way that we had,
not only our clients, but other impacted folks
who were members or worked with the organizations that we
worked with, being able to have access to the press. But then also, I think
the other way that we’re able to do that in
terms of the press was using the data, which I
talked about earlier, to really change the narrative. Because the narrative up to that
point had been stop and frisk reduces crime. Stop and frisk
makes the city safe. And we were able to flip that. Because we were able
the show, well actually, it has a negligible, if
any, impact on crime. And the flip side
is that it’s really having a harmful
impact particularly on people of color. It’s discriminatory. It’s not finding any guns. And so with that data, we
were able to really shift the narrative in the way
that the case and the issue was being covered. And then lastly, I
think most powerfully, having our clients
have the ability to go into a federal
courtroom and in front of a federal judge, to be able
to tell their side of the story and to tell their
experience about how they were treated by police. It’s not something that
people get to do very often. And to be able to do
that over and over again in this very publicized,
high profile trial was a very powerful
thing, not only for them, but I think for the judge
and for everybody watching and for the reporters
that were there. And then lastly, in terms
of the pillar of service, we were able to provide
some legal support to the legislative efforts that
the coalition was working on. Here are some of our clients
at the press conference the day that the judge
issued her decision. Obviously, very happy. But again, the press that we
did around this, we always tried to basically have them talk. And as lawyers, we were there
to answer questions if reporters had legal questions. But in terms of the
affirmative narrative, we always had our clients
being the ones to do that. And the op-ed I was
talking about earlier, I feel like this
was a game changer. Because it was 2011. It was kind of in the
middle of the litigation. We had just got past
summary judgment. Press was starting to pay
attention to the issue again. And Nicholas Peart wrote
this op-ed, which some of you may have read. It was in December
of 2011, where he goes through the five
times he was stopped and the impact that had on him. And I think that was really the
first time I had seen really a first person account of this
in a mainstream media outlet. And after that, I
think you really started to see the media
coverage shift in a way that I think was
more [? feasible ?] for our side of the issue. And there was a father’s
day march in 2012 that had 10,000 people
marching down Fifth Avenue. Everybody probably knows
the guy in the front there. He always seems to show
up at these rallies, even if he didn’t organize them. And as I mentioned earlier– which is good, he
brings reporters– the trial, which
was nine weeks long, was an incredibly powerful
experience, not only for me as a lawyer in terms of
just the trial experience. But having a courtroom
that literally every day was packed with folks from
one or other communities that were directly impacted
by this practice, whether it be youth of
color or homeless folks, public housing residents,
street vendors, sex workers. Every day, there were people in
the audience, full courtroom, watching this trial so that the
judge could see, really see, how this was impacting New
York City and the people who lived in New York City. And this is a quote I really
think resonates with me, too, when we talk about the
history piece again. This is direct testimony
from David Floyd. And the reason I think this
quote resonates with me is he’s really talking about
his freedom of movement being restricted by the
police, by law enforcement, by the state. And for me, that really
hearkens back to the years after the Civil
War, when we talk about in the south after
reconstruction, what the southern states did with
respect to the vagrancy laws, the black codes. I mean, that was really about– there’s the book Slavery by
Another Name– it was really about restricting free
black men and women’s freedom of movement. And that their
freedom movement was going to still be under the– they weren’t going to
have freedom of movement effectively because
of these laws. And the way those
laws were enforced were by police obviously. And so I think that is a
place where it was very powerful for him to say that. And when he said that, I think
he was thinking about that. Because David himself–
who’s now actually a doctor, he eventually graduated
from medical school– was very much a
student of history. And that was why he got
involved in the case himself. Because he saw
those connections. There’s a picture of me
with our client Leroy Downs from Staten Island
talking at the press conference. So I know we’re
running short on time. So I’m going to end
with this and then open it for Q&A. This is
a quote from the trial decision of the district
Judge Shira Scheindlin. And this is the
part of her decision where she creates this process
for directly impacted folks to give input into reforms. And I think, to me, this
really, when we think about, as lawyers, trying to
use legal strategies to bring about broad,
fundamental change, I think this really captures
what our approach to that has to be. Which is that it’s the
directly impacted folks who are going to know
better than any of the so-called experts what
the consequences of reforms are going to be or will be. And so their voice
has to be really at the forefront
of any discussions we have about changing
or ending some kind of legal or discriminatory
policy or practice. And so this judge recognized
it, to her tremendous credit. She paid a dear price for that. As many of you may know,
after the decision came out, she was ultimately
removed from the case under very shady circumstances,
which I can talk about in the Q&A. But I
think this quote really captures, for me, why we brought
the case, what we were hoping to accomplish, and
ultimately, I think what we have accomplished in the case. So I’m going to end it there. Because I really would
like to hear from you guys. And hopefully our
discussion, I will be able to bring up a
couple of the points I had forgotten to make. But I don’t want
to talk anymore. So if anybody has any questions. And when you ask
your question, just introduce yourself and the
year that you’re in as well. OK, well I have– OK, perfect. Yes. Hi. I’m Calipso. I’m a first year student. I’m just interested in how– because obviously, when
these decisions come down, the police don’t actually
change their practices, they just find
ways to hide them– how do you work, I
guess with other– do you work with
public defenders? Or who do you work with to
make sure that they’re not continuing to get away with it? So a couple of ways. One is, yes. We talk to public defenders. We also talk to our
grassroots partners, who their members are the
ones who are still interacting with police on the street. There’s also, in this
particular situation, we have a court appointed
monitor who has a team. And he’s looking
at several aspects of what the police are doing. He’s not, obviously, to your
point, going out on the street and seeing what
they’re doing there. They’re doing their trainings. He’s going to the precincts. He’s talking to police officers. He’s meeting with
community groups, he’s watching body
camera videos, which we can talk about if you want. So he’s also keeping an eye
on the police department. But you’re absolutely
right because this is a great decision. You know, the judge
sets out a roadmap for how they’re
supposed to change. But that change has
to be implemented. And you know, for the last
four years, basically, 3 and 1/2 years, our job has
been to try to look at that. So I’m doing almost
as much work now as I was at the
time of the trial, looking at that exact question. And what about the
major challenges in that implementation and
the monitoring process? And also, is it usual to have
a court appointed monitor, or is that quite a novel– I mean, yes and no. I think in the Department
of Justice, consent decrees, it’s pretty common. In cases involving private
plaintiffs, first of all, there’s very few of
those cases because of the tremendous amount
of resources, obviously. And then to actually win
the case is also very rare. So for those reasons, it’s
rare to have a monitor. It’s very hard. Because I think the
police department, again, to your point, there’s
this decision handed down, but they disagree with it. They tried to
appeal it at first. Ultimately, for
political reasons– we had a change of
mayoral administration– they dropped the appeal. And I think there were a lot of
people in the police department that thought that
was a betrayal. So there are still
a lot of folks there who were there from
the prior administration who believed what they
were doing was right. So in terms of the people who
have to actually implement these changes on
the ground, there’s a little bit of resistance. So, yeah, it’s very challenging. I think ultimately, what
we want, is culture change. In other words, a different
approach to policing doesn’t reward– or that rewards fair
policing, rewards treating people with respect,
treating people fairly. And what we’ve had forever
is a police department that rewards aggressive and
abusive policing, getting a lot of arrests,
that kind of thing. So if and when we can do that is
still very much up in the air. Yes? So I’m [? Daryl Miller, ?] and
I teach civil rights litigation here. I really appreciate
you coming out. So one thing that I was
interested in how you negotiate is your duties to the client,
your duties to the community, and your duties to the movement. Because I can imagine
in many cases, those things will not be
aligned and that, you know, letting the client just
get in front of the cameras could actually be a
high risk [INAUDIBLE].. So how do you think about
those kind of issues? So that, we thought
about it a lot. I think a couple ways we
tried to address that. First and foremost, when
we were developing the case and trying to
identify plaintiffs, we spent a lot of
time interviewing folks who were interested. I mean, we put out a wide net. If you’ve ever been stopped and
frisked in the last five years and you’re black or Latino,
we’d love to talk to you. And then it was, like, you know,
really sitting down with folks and saying– not because we were concerned
that they wouldn’t present well, but to say,
why do you want to get involved in this case? Is it because you want money? If that’s it, then you
should file individual 1983. But this case is
about systemic change. So first, finding people who
kind of shared those values. And then all of our clients
did extensive media training with our communications folks. And it definitely paid off. I mean, our youngest
plaintiff, David [? Arlette ?] who was, I think, a college
student at the time, he had a learning
disability and was very nervous about public speaking. I mean, he ended up, by
the week before trial, he was on NPR for an extended
interview, on the national NPR, and just killed it. You know, but that
took several years. But in terms of who our–
obviously, or obligation ethically is always first
and foremost to our clients. And so the one point
where that became not an issue, but something that
we definitely had to navigate, was we didn’t bring
any damage claims for the class as
a whole, we just brought in adjunctive
relief class. But for the
individual plaintiffs, we did have damage claims. Now, for three of the
four, their damages were going to be negligible
because they had been stopped. But it wasn’t like
they were arrested or there was no force involved. So they weren’t really look
at much much money anyway. But there came a point in
time where we were like, you know, I think
the best chance we have of winning this case
is if this is a case tried to the judge and not to a
jury because a federal court jury in Manhattan, you’re
going to get mostly people from Westchester. It’s just not going to
be a good jury for you. And really, the issues were
so complicated, particularly the statistical issues,
we felt we needed to have this as a bench trial. But the only way
we could do that is if we gave up
our damage claims. So for three of the four,
they were like, oh, yeah, that’s fine. I never really cared
about that anyway. But the fourth gentleman,
Dion Dennis, he had been arrested
and held overnight. So he could potentially– and
we [INAUDIBLE] that with him. Literally, after he presented,
here’s the situation, he said, yeah, that’s fine. I’ll eat [? them. ?]
Are you sure? He’s like, no, I didn’t bring
this case for the money. I didn’t want this to
happen to me and my son. I don’t want this to
happen to us anymore. So that ended up
being very easy. But I think that
speaks to we just had great plaintiffs
who really were doing this for similar reasons as us. Let’s see. I’m going to go there
and then come here. OK. I’m Gabriella, I’m a 2L. A follow up on the
plaintiffs, and how you choose which
[INAUDIBLE] when discerning plaintiffs,
and more specifically, how do you make
sure the plaintiffs you’re paying before the
media are representative of the entire class? Because I did notice that some
in the pictures were all men. Yes. So we go through
the four name plans. When it came time to trial, we
had 13 witnesses, and the four main plaintiffs, and nine class
member witnesses testifying. Only one of them was a woman. We did speak to
many, many women. Actually, there
were several who– I mean, obviously,
women were [INAUDIBLE].. There were several
who I think would have been very compelling. But interestingly, a
lot of them involved what I would classify as– there were definitely
some things that were done during
those stops which, I think, bordered on sexual
assault. And I think they were very
uncomfortable talking about it. You know, because you
have to get deposed. You have to not only
testify in court if you get deposed, which is a
miserable experience for anyone who’s been deposed. So ultimately, they
decided not to do it. The one woman who did,
she did a great job. But even the way she
was cross-examined, I feel like the
city attorney was trying to suggest very
indirectly that she was a prostitute. Because he’s like,
so what were you wearing when you were walking
down this deserted street? You know, it was
just really yucky. So it’s definitely something
we’re cognizant of. And we try to bring more
women in as plaintiffs. But it was very
challenging to do that. OK you both had something. So I’m going to
do this gentleman. My question was
kind of a follow up on Professor Miller’s question. I know that during the
integration with [INAUDIBLE] litigation, a lot
of states or schools will try to buy off
the named plaintiffs. I’m just curious if that
was an issue in your case. Yeah, I mean, fortunately for
us, at that time in New York, the City Attorney’s Office
was very unwilling to do that in a lot of cases. They would make these very
[? nuanced ?] settlement offers of $5,000. So it’s very easy to reject. Now, I think, they’re
a little more strategic from what I understand. But back then, they were just
like, this case has no merit. We’re never going to
make you a real offer. So we fortunately didn’t
have to deal with that. Yes? I was really
interested in what you said about this kind of
participatory remedial process. I’m wondering if
we can give some more examples of what that
looks like in other issues and if it stretches from
prevention, to accountability, to– So in terms of
other examples, when we were doing the research,
we proposed this to the judge. And we did research. And where we saw it
most often, I mean, it’s not very common at all. I’ve seen it in the housing
discrimination context actually, which is interesting. What’s the big
case in Baltimore? The Thompson case, which I think
is now, maybe, 20 years old? That’s a huge case that the
NAACP Legal Defense brought. And I believe they had
something kind of analogous to this, where tenants
themselves, there was a process for
them to have input into how, you know, the housing
situation was going to change. In terms of law
enforcement, policing, the only other example we
drew from most was Cincinnati. So I don’t know if you guys
are familiar with Cincinnati. They call it the collaborative. But basically, in
the early 2000s, there was a similar case,
a racial profiling case, brought against the
Cincinnati police department by the ACLU of Ohio
and Black United Front, which was a local racial
justice organization there. And that case, it
ended up settling. But the settlement
created what’s called the Collaborative
Agreement, which was developed through a very similar process
where over the course of I think about a year, they got
input from, I think it was, eight different stakeholder
groups the city around policing and developed the
remedies through that. So we talked a lot to the
lawyers from that case as well as the Black United
Front leaders just to pick their brain
about how to do that. And so that was really
our biggest inspiration. Yes? When you talked about that it
was a very deliberate decision to do more outreach to
grassroots communities and the affected communities
throughout the course of the case, I wonder if you
could say a little bit more about what those
strategies were, and also if it’s something that
CCR has tried to replicate in other types of litigation. Um, we definitely have tried
with varying levels of degrees to replicate or to do it
in other litigation, which I can talk a little bit about. I mean, the strategies
we use is really trying to take advantage
of the relationships that either we as individuals
have in some of these groups because a lot of folks at
CCR, outside of our jobs, have our own political activism. But then, also, just
talking to allies, and trying to develop and
to develop the relationships organically. It wasn’t like we
would cold call. Like, hey, let’s call the
National Congress for Puerto Rican Rights and see if they’re
interested in this issue. It was, you know,
we’ve been working with them going back decades. This is a much easier,
natural conversation to have. And frankly, in the Daniel
situation, they came to us. And I think it was because our
executive director at the time, Ron Daniels, no relation
to the Daniels in the case, had been working in that
movement since the ’70s, really. So I think the lesson for us
is, relationship building is as important as our legal
work, because if you don’t have the good, strong,
trusting relationships, [INAUDIBLE] are not going
to bring the issues to you. They’re going to
look somewhere else. And you know, then it’s
not really the kind of case we want to do, if
it’s not something that the directly impacted
community thinks is a priority, we’re not going to
make it a priority just because we think it is. Yes? I’m [INAUDIBLE]. I’m an alum. I’d like know, you
mentioned that you have a communication [INAUDIBLE]
that trains the plaintiffs. But I wanted to know more
on the psychological aspect. How do you train them during
and, most importantly, after the cases take place? Because I’d imagine there is
sometimes intense scrutiny. Yeah, I mean, that was a
very difficult process. For example, the depositions. The depositions were
probably the most stressful, more stressful than the trial. Because trial, you
have a judge who can rein in an overly
aggressive opposing counsel. In a deposition, it’s
just you, your client, the lawyer from the other
side, a court reporter in a windowless
conference room, usually. And they can ask
them almost anything. It goes on for seven hours. And you know, none
of our clients had ever been deposed before. So we prepped them. We did mock cross-examination. But there was really no way to
completely prep them for that. I think it was just really
during it, sitting next to them not only was their lawyer,
but kind of as a friend, and say, look, I’m here. I am here to, in some
ways, protect you, make sure you’re OK. So a lot of breaks to
just say, are you OK? You’re doing great. You know, just
answer the question. If you don’t know the
answer, the best answer is, I don’t know. And they all did
incredibly well. And I think at one point– this is a funny story
from the deposition. It was on the record, so
I’m allowed to say it. So I’m not revealing– One of our clients
being deposed, he was just doing
such a great job. Here he was the city lawyer
would ask the question, he would pause, make sure
he understood the question, think about it, kind
of go like this, and then, if he knew the
answer, he’d gave it. If he’s like, I
don’t remember, or I don’t understand your question,
and the lawyer was getting so frustrated he basically accused
me of the record of coaching him. Which, I was like, I
mean, I’m not, you know? And to me, that just
showed that the client was doing such a great job
of just being, yeah, I’m taking my
time, I’m answering the question that’s asked, if I
don’t understand it, I ask him. I tell him I don’t
understand it. If I don’t remember, you know? Because I feel like the natural
tendency for most people is, if someone’s
asking you questions, you want to give them an answer. And so you sometimes will
be giving them information they didn’t ask you for, and
you’re making their job easier. If they ask a confusing
question, say, I don’t understand. So it was hard. And all of them, I think,
were exhausted by the end. I have a question
about backlash. In particular, thinking
about human rights lawyering advocacy. By challenging structural
racism, sexism, different inequalities, if
you have any moderate kind of success in that context,
you know you’re going to have backlash. [? Now, can ?]
[? we ?] plan for that as part of our advocacy strategies? Am I thinking through
short term and long term outcomes of that particular
engagement strategy? What was the backlash that you
experienced in this context, including, I think
you mentioned, that the judge’s
removal as one example? And how have you sought
to mitigate that backlash? So the backlash, the
biggest backlash we got, which we kind of had a
feeling would happen, but we just didn’t know
how to prepare for it, was from the police
unions, actually. They were incredibly
aggressive, and hostile, and just nasty as
soon as the decision– I mean, they’d stayed
quiet for five. The litigation went on for five. They stayed quiet. And then, I think, it was
literally the day after– this is where the politics,
I think I mentioned earlier, it’s interesting. So we get this decision
in August of 2013 from the court saying they
violated the Constitution, they have to do all these
things to change it. The city– that was still
Bloomberg administration, Ray Kelly administration,
they immediately filed a notice of appeal. Meanwhile, we have
a mayoral election that’s going on at,
literally, the same time. And it’s the Democratic
primaries coming up the first week of September. And four of the five
Democratic candidates, seeing the way the
winds are blowing, they’re like, if I get elected,
I’m going to drop this appeal. They all say it. Stop and frisk is terrible. We shouldn’t do it anymore. And if I get elected,
I’m dropping it. So then the election,
I think it’s September 7th or something,
Bill de Blasio wins the primary. Which in New York,
at this point, because of who is running
on either side, effectively, he was going to be the mayor. And so then, four days
later, the police unions moved to intervene in the case. And they say, we are
moving to intervene because we know that
the city no longer has our back because the next mayor
is going to drop the appeal. And so because of that
intervention, the case, literally, is held up for
the next year in litigation because even when the de
Blasio gets elected and decides to drop the appeal, there’s
a big press conference, and Vince– my boss– goes
to the press conference, and stands next to de
Blasio, dropped the appeal, it doesn’t matter because the
unions are in court now saying, we’re going to take this
appeal up if the city doesn’t. And so we ended up having to
go all the way to the Second Circuit on the issue
of intervention, now even on the
merits of the case. And ultimately, the
Second Circuit says, you have no standing,
get out of here. So we were OK. But that, we were
not prepared for. And then similarly,
along with that, not only were they
doing that, they really have this huge misinformation
campaign amongst the rank at file, so that everyday
police officers are like, oh, well, now I can’t
stop anybody anymore because I’m going to
get sued or, you know, these lawyers want
me to get killed. It was just really nasty. And we weren’t really
anticipating that. I have another question. I want to give
[INAUDIBLE] questions to come to the surface. You mentioned a couple of
times the importance messaging to change the narrative,
the terminology you used, which are brought
about in the clinic, and in the [? advanced ?]
[? clinic and seminar ?] about the need for messaging
around human rights, right? I mean, it’s not enough
to do litigation, to do social movements,
you need something else. Can you talk through
how that takes place in an organization like CCR? Well, you know, as I
alluded to earlier, we have a very amazing
communications department. I think our current director
actually won a Pulitzer Prize when she worked for
the Newark Star-Ledgar. So we have really smart
people, first of all. But again, I mean, it
goes back to talking to our aggressors’ partners. Like, you know, how do you
want to tell this story? Because changing
the narrative is not only the content
of the narrative itself, but who’s
putting it out there. And so we always wanted it to
be the directly impacted folks, because the way the
issue was really talked about up until probably 2011,
until [? Nicklaus’ ?] op-ed, was you had policy people,
and government officials, and police officials, and
civil rights lawyers having the discussion. But the people who were
being stopped and frisked were not part of
that discussion. And so I think that
was the main thing. So how do you guys– for them it was
always like, we want to talk about this as
a racial justice issue. Yes, it’s a civil
liberties issue, but it’s really for us,
a racial justice issue. This is about discrimination. It’s about racist policing. And that’s how we
want to talk about it. You know, then the way that
ties into the legal case is, OK, so we’re bringing
a fourth amendment claim, but we’re also going to
do the equal protection, because that’s really for
us and for the community. That’s really the heart
of the problem for them. Yes? Hi, I’m Chelsea. I’m a first year student. I was just wondering about that
op-ed, how that came about, whether it was his idea, or
your communications team, and how the New York
Times responded. So it was– how did
that come about? So it was interesting. I think we originally
pitched an idea. We hadn’t chosen which
plaintiff was going to do it. But we pitched the idea to
a bunch of the newspapers in early 2011, and there
was not really any interest. And then in August of
2011, the judge actually issues a very good decision. Which if there was
no trial decision, this would have been kind
of her landmark decision, which was denying the city
summary judgment motion. She really kind of lays out– because that was the first
time that we had really put all the evidence from
discovery in front of her. And so that was the
first time the media had seen these depositions,
transcripts, and seeing these stop and frisk
forms, and seeing the data, and they were like, whoa. So there was very good media
coverage of that decision. And then I think, actually,
Michelle Alexander read the media coverage of it. And she reached out
to my colleague, [? Sineta Patel, ?] who is
now a law professor at UCLA. You guys may know her. She was my co-counsel
on the case at the time. And said, you know, I really
think you guys should have one of your clients do an op-ed. And we were like, oh,
yeah, that’s a great idea! We never thought of that. We’re like, could you help? And so she kind of
helped get the New York Times to accept it. So it’s really Michelle
Alexander, gets all the credit. One question. I think we might be out of time. At the beginning of
your presentation, you described yourself as a
civil rights and human rights lawyer. And I think what’s always
struck me, early in my career, I had a co-counsel group with
CCR working on suing the US government for information
about the CIA’s [INAUDIBLE] and retention
interrogation program. And part of the reason why
I partnered with the CCR was because, even though it was
a very American organization in many ways, it did take a
very human rights approach. It also engaged in
litigation abroad. Can you talk a
little bit about what it means to be a lawyer in an
institution that [? doesn’t ?] bring a human rights approach? How does it change your work? Well, I think one
way is that what I would do to at the
very beginning, which was that for us, the work
is really guided by what the people on the ground are
experiencing as opposed to, this is an issue that
we think is important. Again, I’m not saying that other
legal organizations don’t do it the same way that we do. But I think that’s part of when
we talk about human rights. For us, it really
comes down to what are people experiencing,
what injustices are they suffering, what
do they want to see change? And then, similarly, I think– I know this is a cheesy
way to talk about it– speaking truth to power. In other words,
really not trying to sugarcoat the
way that we frame a legal case or an
advocacy project, really talking about what
it’s really about. And so in this example,
this is really about racism. You know, the
Guantanamo situation, it was very much about, these
people are being tortured. And so there was a rule of law
aspect to it, but it was also, no, they’re being tortured. And you know, in almost
any of our cases, I think that’s really
the guiding principle. We’re going to really
speak truthfully about what this case
is about and what’s really going on here. Because that’s what
our clients want. That’s what the movement wants. Even if it’s not necessarily
going to fit nicely into a legal claim– a lot of times it doesn’t. In this case, we were mocked
by some of our colleagues in the civil rights community
who will remain nameless. You’re bringing an
equal protection claim? You’re never going to win. That was literally
what they said. We’re like, well, maybe
we won’t, but the point is is that’s what
the case is about. So why not? You have to include that. That has to be in the case. OK. Well, thank you very much. [SIDE CONVERSATION]

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