Something is wrong with the law if those entrusted to enforce it repeatedly violate it. This is the troubling story of race and Michael Brown and Eric Garner, and police brutality in Cleveland, Ohio. But these three examples raise even more profound stories about the role of the law in a democratic society regarding whose legal norms are enforced and how. It is the story of legal legitimacy.
W.E.B. DuBois' 1903 The Soul of Black Folk declared "the problem of the Twentieth Century is the problem of the color-line." Forty years later sociologist Gunnar Myrdal's 1944 The American Dilemma echoed that theme, contending that African-Americans were largely excluded from the promise of American democracy because of Jim Crow and racial segregation. Rosa Parks sitting at the front of the bus, the Supreme Court's 1954 Brown v. the Board of Education, Martin Luther King, Jr.'s march on Washington, and the civil rights legislation of the 1960s supposedly ended this exclusion, with the 2008 election of Barack Obama proving we had entered a post-racial world. Race, especially as it intersects with class, remains as salient and divisive an issue as ever. Surveys point to very different reactions among Whites and people of color when it comes to judging Ferguson and police behavior in general.
But it is not just about race. Talk to feminists and women’s activists who contend that the law embodies a male perspective. From issues of rape, sexual harassment, pregnancy, disability, and job discrimination, to the persistence of women making 77¢ on the dollar compared to men, the law continues to treat the two sexes differently. Or consider class. One need not recount the plethora of evidence demonstrating the gap in wealth and income between the rich and poor in the United States is at record levels for the last century. The law favors the affluent anywhere from their ability to hire good lawyers or to make excessive political contributions. Not too many rich people get the death penalty or see prison time for their crimes. The current Supreme Court seems hellbent on turning corporations into full-fledged citizens and it is blind or deaf to the plight of the poor. The law equally appears to allow the rich and poor to sleep under the bridge.
There is also something wrong with the law that sanctions repeated police use of excessive force. I used to teach a class on police criminal and civil liability under state and federal law, including what is called §1983 violations. The course practically taught itself with examples of police behaving badly–including in Minneapolis alone. It is not easy to win §1983 claims. The law and the public favor the police. Maybe once that was appropriate, but knowing that we have scores if not hundreds of police shooting Michael Browns per year leads one to question whether the law has tipped too far in favor of the former.
What all of these stories have in common is that many do not view the law as legitimate. In a democratic society such as the United States legal values should be widely shared, equitably enforced, and obeyed by all, including by those who enforce the law. What we have learned Michael Brown and Eric Garner is that the reality is far from what we would hope.