Counseling Justice: What Advice Could an Attorney have given to Martin Luther King, Jr. at the Edmund Pettus Bridge?

What should a lawyer have advised Martin Luther King, Jr. 50 years ago as he contemplated crossing the Edmund Pettus Bridge?  Posing this question as we witness the anniversary of this act of defiance and in the shadow of Ferguson, Missouri raise compelling questions not only about civil disobedience in America, but only about the connection between law and ethics and the role that attorneys have in advising their clients and in participating in the promotion of social justice.  I confess at the start I do not have all the answers, but the issues here are vexing.
    The connection between law and ethics and civil disobedience has deep roots.  There is Antigone’s burying of her brothers in defiance of the orders of Creon the King.  Socrates challenged Athenian democracy when it ordered him to stop philosophizing.  Jesus and early Christians confronted the Romans as they practiced their faith. St Augustine once proclaimed: “Lex iniusta non est lex”–an unjust law is no law at all.  Natural law believers contend that human law must be based on some natural laws or rules of justice, and thinkers ranging from St Thomas, Thomas Becket, to Lon Fuller have argued that there is an inner morality to the law.  At times human civil law is simply unjust, raising a compelling case for civil disobedience.
    American history is replete with cases of civil disobedience.  Colonists dumping tea into Boston Harbor was as much a political statement about independence as it was a protest against a tax they did not like.  Henry David Thoreau refused to pay his taxes, opting for jail as a protest against slavery and the fugitive slave laws.  And civil rights protestors and those opposed to the Vietnam War too defied laws they deemed unjust. 
    As philosophers John Rawls and Robert Dworkin  argued, the core of civil disobedience is disobeying those laws which you feel are unjust–not simply any law to make your point.  It made sense for Rosa Parks to refuse to sit at the back of the bus in that she was directly challenging the law that discriminated against her.  The Greensboro Four in 1960 sitting at a Woolworth’s lunch counter and demanding service as a protest against segregation laws also defied the law they wished to challenge.  Even King’s march across Edmund Pettus bridge was a legitimate challenge to segregation laws as its defiance was integrally connected to the racial discrimination they were challenging in 1965.  In all these cases breaking the law was meant to protest that law while at the same time highlighting a bigger cause. 
    The purpose of civil disobedience is to bring attention to the  injustice of the law with the goal being to bring about reform.  Because that is the goal, some contend civil disobedience should not be prosecuted.  Whether that is the case can be debated.  Will the civil disobedience be successful and is the cause is just are only a couple of issues to ask.  Will breaking the law send a sufficient message to the majority to change the laws, or will the civil disobedience lose part of its potency by knowledge that one is not risking prosecution, are tactical and political questions that do not lend themselves to simple answers.
    But what if King had come to an attorney in 1965 and asked whether he should break that law.  What should an attorney have done or said?  The contemporary ethical rules for lawyers known as the Rules of Professional Conduct were not in effect then, but assume they were, what do they permit?  The preamble admonishes attorneys to be zealous advocates for their clients while also recognizing that they have “a special responsibility for the quality of justice.”  One hopes that in advising a client one also promotes justice.  Moreover, Rules 1.16 and 3.3, as well as 1.6 collectively  and individually prohibit an attorney from assisting or advising a client to break the law.  Generally a lawyer’s first obligation is to counsel a client to conform to the law–to obey.  But lawyers may advise clients that a law may be unconstitutional but nonetheless also inform the client about the risks of challenging the law.  Similarly, a lawyer may advise a client contemplating civil disobedience about the consequences of disobeying the law and still represent the client afterwards.  Given this, there would have been no problem for an attorney advising King on his options, including what might happen if he crossed the bridge.
    But there are two additional issues here.  Should an attorney have told King to defy the law and march, and what about if the attorney marched with him?  These are tough matters of conscience and ethics.  On the one hand if the attorney thinks the segregation laws (or in this case an injunction) is unjust, should the lawyer counsel breaking the law?  One answer is that if the attorney truly believes the laws are simply unjust (but not illegal) it would be unethical from a lawyer’s ethics point of view to advise breaking the law.  More importantly, an attorney taking this position may not be acting as a zealous advocate for the client.  Such attorneys may be zealously advocating for a cause or they may be pressing their moral views upon a client, but they are not zealous advocates for their  clients.  But even if the moral views of the client and the attorney align, it may be the case that the attorney is no longer able to act primarily with the best interests of the client in mind–there may be a conflict of interest.  In the end, it is not about the attorney’s conscience when advising a client.  If an attorney believes that the law is unethical and wishes to civilly disobey, he or she may do so and cross the bridge, but  at that point one probably should no longer be advising King as an attorney.  The attorney is now a participant in the disobedience, not advising in the matter.  It may be difficult to cross the bridge and advise King at the same time.
    Conversely, is it ethical to advise clients to obey unjust laws?  Would it be wrong to advise disobeying laws connected with supporting an unjust society?  Should an attorney have advised Thoreau to pay his taxes?  For John Brown to raid Harper’s Ferry? Or today, would it be appropriate for an attorney to tell  protestors to block clinics because abortion is wrong?  Is it okay to advise illegal protests against Ferguson and racial discrimination in America?  No one says that lawyers should be indifferent justice; they should do their best to promote it.   But these issues raise a difficult problem of reconciling ethical rules that attorneys are supposed to follow with obedience to the law and ultimately the principles of a just society.  I am not sure what I would have done as  an attorney advising King in 1965.  I hope I would have gotten it right but it is not clear exactly what getting it right actually means.

Tinker, Tailor, President, Spy: American Politics at the End of 2014

The November 2014 elections already seem ancient history.  Yet in barely seven weeks a host of major events have transpired, raising interesting questions about Barack Obama and the future of American politics, both short and long term.  Let’s review some of them and see what they potentially mean.

The End of the Cold War...Finally?

 The Cold War is over. Long live the Cold War!  These are the sentiments best captured by two events this past week–Obama moves to normalize relations with Cuba and the president threatens action against North Korea for hacking SONY.  Both events

Cuba and North Korea are perhaps the two last iconic symbols of the Cold War.  They conjure up images of the Bay of Pigs, the Missile Crisis, and a divided peninsula and war that would never end.  The two countries were supposedly the last two communist countries standing, and they both were surrogate grounds for the conflict between the US and USSR.  But at least in the case of Cuba and  Castro, it also represented a host of other rumors and conspiracies about the assassination of JFK, the FBI, CIA, and spying.

We embargoed Cuba for 50 years with no avail. No real good came of it and in fact one could argue that the embargo and US politics toward Cuba did more to hurt America’s relations with South America than help it.  It also meant that we had little leverage with Cuba when the inevitable day came when the Castros were no long around.  Obama’s move was smart–it represented or reflected the new realities of the world.  The generation that wanted to maintain the embargo is largely dead or gone (keep that in mind Senator Rubio) and Cuba is no longer a front line for the Cold War.

North Korea is different.  It is no longer the surrogate struggle between the US and USSR.  It represents a new type of battle–cyber-terrorism.  There is an old adage that says the most countries  are militarily prepared to fight the last war. The same is true with the US.  We still think of war and terrorism as the use of bombs and bullets or of physical invasion of one country by another with troops, planes, or even drones.  Think of terrorism and we think of 9/11.  But that is old thinking according to Richard Clarke who in Cyber War points out how vulnerable the US is to cyber terrorism and also how badly prepared we are to fight it.

The US may be one of the most wired and computer connected societies in the world.  Such sophistication means there is a lot to hack–anywhere from official government defense sites to power plants, trains, planes, financial institutions, and private companies such as SONY.   Clarke argues we are hackable, that are defenses are poor, and that the US is overall ill-prepared to fight back.  The terrorism is what happened to SONY and that it what the future 9/11s will look like.

Obama has vowed action against North Korea but options are limited.  Very little of Korea is computerized so points of vulnerability are fewer.  We have little trade with that country and few think that the president is prepared to deploy old-fashioned arms against it.  For now there is a standoff.

This is the new Cold War.  But this is not the only part of it.  The new Cold War is the on-going battle against ISIS.  And the new Cold War is how the Ukraine has become a symbol for what looks like a lingering or rekindling of the old Cold War between Russia and the United States.

The Lost Soul of American Politics

The on-going stories of race and policing in America and the Senate CIA torture report together raise troubling images about America, especially when one considers the reactions to both.  They paint a partisan and racially divided picture about the use of force against citizens and non-citizens around the world.   Collectively, they also question the moral legitimacy of the US.

One of the defining characteristics of America–or at least Americans like to believe–is that we are different and that we embody a set of moral principles that distinguish us from the rest of the world.  This exceptionalism–America as the shining city on the hill-gave us moral authority over the rest of the world.  Yet police violence and torture of prisoners destroy any credence in that exceptionalism.

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. It is not easy to win these 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.  Conversely, I remember once doing a WCCO radio show years ago when news of torture fist hit the news.  I explained the Geneva Accords on treatment of prisoners and then took calls.  Repeatedly military vets called in to condemn torture declaring that they learned that if we tortured they (the enemy) would do the same to us or that we would be no better than them.  No surprise that John McCain was one of the few Republicans to condemn the CIA.

My point here is that the Senate report itself was not a surprise.  We have long since known that torture does not yield good information.  Nor should we have been surprised that the torture existed.  We have known that for years.  The real surprise is how some such as Dick Cheney seem completely morally tone-deaf and, to a large extent, how Barack Obama seemed to distance himself from the report.

A New Obama Presidency?

For a president who was supposedly rendered irrelevant by the 2014 elections, Obama is perhaps finally showing that there is still life to his presidency.  Yes he blew it on the Senate torture report, and ISIS, and on Syria.  But increasingly his moves on immigration and Cuba look bold.  While too much of his first six years has been marked by timidly, there is a glimmer of hope for progressives that his final two years will not be marked by constant capitulation to the Republicans.

However, there are still nagging doubts about his presidency for many on the left.  What will he give away to protect Obamacare or make it look like he is a compromiser?  The mistake the progressive  made in 2008 was to think he was progressive.  He was compared to George Bush but not compared to many other Democrats.  Obamacare was a Republican idea he embraced.  Obama was or became  a Wall Street candidate who took more money from the too big to fails than any other candidate in history.   Obama has done more to kill off campaign finance reform and limit in politics than any candidate in history.  Yes he protested Citizens United but he has raised more money than any other presidential candidate in history.  He was the first to opt out of the presidential voluntary public financing system, and he just signed a bill dramatically raising contribution limits to political parties.  His tenure a president will be footnoted as the one where money took over politics.

Start Your Engines

The Iowa straw poll is eight months away and the Iowa caucuses are barely 12 months out.  The 2016 presidential race is upon us.  All speculation is on Clinton v Bush, but not so fast.  But are running with a sense of inevitability but both are candidates with tired old names who may no longer  represent where the parties are.  At this point it is equally probable that either or both of them get their party’s nomination, but it is equally probable they do not.  Clinton has a better chance given a weak Democratic field, but a serious challenge from the left (almost anyone for the Democrats will be from the left) could change the equation for her.  For Bush, there are many other potential rivals such as Rand Paul who excite the base more than him.  Finally, both Clinton and Bush have many liabilities that could be exploited.  Long records in office give opponents lots to attack.

What We have Learned from Michael Brown and Eric Garner

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.

A long, powerful history: How we militarized the police

Please Note:  Today's blog originally  appeared in Minnpost on August 26, 2014.

Policing in America has been shaped from its early days by a military structure, a war mentality and a cloud of racism that continues to repeat itself over time.

The shooting of Michael Brown in Ferguson, Missouri, raises many troubling questions, among them: How did we come to militarize the police? The answer reveals a powerful history that ties race, class, policing and the military together.

The shared history goes back to the Reconstruction era. After the Civil War, federal troops were used to enforce civil rights and the Reconstruction in the South. But as a result of the disputed presidential election of 1876 between Republican Rutherford Hayes and Democrat Samuel Tilden, Democrats conceded the electoral votes to Rutherford if federal troops were withdrawn from South.

Passage of the 1878 Posse Comitatus Act ended Reconstruction and barred federal military personnel from enforcing the laws. The Act does not apply to the National Guard, and over time they have been deployed repeatedly to keep the peace. A couple of examples: The 1894 Pullman strike saw 12,000 federal troops deployed to break up a workers' strike. In 1957 Eisenhower nationalized the Arkansas National Guard to enforce integration in Little Rock.

Prior to the Civil War, only a few American cities had police. Post Civil War, policing grew along several fronts. There were the Pinkertons, who were created as private police to bust unions. In the South, police departments emerged to maintain order against the freed slaves. In the North, they grew to check immigrants and unions.

Early 20th-century reforms

Reformers such as August Vollmer in the beginning of the 20th century sought to professionalize the police by reforming its structure and organization along a military model of authority and hierarchy, creating uniforms and command structures that exist to this day.

Yet the modern militarization of police in America owes it origins to several events. First, reaction to the urban riots of the 1960s led to President Lyndon B. Johnson signing into law the Omnibus Crime Control and Safe Streets Act of 1968. The Act created the Law Enforcement Assistance Administration, which made available grants to local governments to develop and purchase military-type resources to suppress the riots. The money facilitated the development of SWAT and other heavily armored police forces which had developed in Philadelphia, Los Angeles, and other cities to counteract so-called black insurgency.

Second, President Richard M. Nixon’s declaration of the war on drugs and its reemphasis by President Ronald Reagan further enhanced the militarization of the police. It did so in its rhetoric — the war metaphor — sanctioning that a military-style response was needed to address drugs. But also underlying the war against drugs was a racial overtone — the urban riots of the 1960s and drug usage were often associated with blacks. This was seen later as punishment differentials between drugs such as crack and cocaine more heavily punished racial minorities than whites. American prisons and jails incarcerate far more people of color than whites for drugs.

Civil forfeitures

Third, the war on drugs encouraged the police use of civil forfeitures. This was the confiscating of property of convicted and sometimes suspected drug dealers. The theory was it would take the profit out of crime and prevent drug dealers from using their money to enrich their businesses. Civil forfeiture was upheld by the Supreme Court in 1996; it gave local police departments the money to be able to purchase even more military equipment from the Pentagon.

Finally, the events of 9-11 and reaction to it led to the collapse of the distinction between criminal policing, intelligence gathering and protection of national security. Laws such as the Patriot Act effectively turned the police into agents in the war against terror, again providing both a war metaphor to support aggressive policing and, with the creation of the Department of Homeland Security, new resources and funds to fight that fight with military-style weapons.

Thus, policing in America has been shaped from its early days by a military structure, a war mentality and a cloud of racism that continues to repeat itself over time with racial profiling, the death penalty and shootings like that of Michael Brown in Ferguson. The only surprise is the degree of press and visibility it has received. Hundreds if not more Michael Browns have existed, and the question now is what America will learn from this latest tragedy.