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Episode 2: Black Lives Matter and the Fights for Racial Justice

October 29, 2020

Hosted by Kim Taylor Thompson and Anthony Taylor Thompson; Produced by Patrick Derocher (JD ‘21), Arianne Connell (JD ‘21), and Jennifer Thompson (JD ‘21); Edited by Patrick Derocher (JD ‘21); Published by Serena Warner (JD ‘21)

NYU JLPP · LawsFlaws Episode 2 – Black Lives Matter And The Fights For Racial Justice

In this episode, Professor Kim Taylor-Thompson and Professor Anthony Thompson answer a deceptively simple question: “Why are Black Lives Matter and its advocacy goals now gaining momentum now?” In a wide-ranging conversation, the professors touch on racial biases in policing and education, the coronavirus pandemic, the movement to defund the police, and concrete steps that can be taken to address systemic racism.

Kim Taylor-Thompson is a Professor of Clinical Law at NYU School of Law. Her teaching and scholarship focus on the impact of race and gender in public policy – particularly criminal and juvenile justice policy – and the need to prepare lawyers to meet the demands of practice in and on behalf of marginalized communities. Before academia, Taylor-Thompson spent a decade at The D.C. Public Defender Service, ultimately serving as its director. Taylor-Thompson received her J.D. from Yale Law School and her B.A. from Brown University.

Anthony Thompson Portrait

Anthony Thompson is a Professor of Clinical Law at New York University School of Law. His scholarship focuses on race, offender reentry, criminal justice issues and leadership. Prior to his appointment to the NYU faculty, Professor Thompson served for nine years as a Deputy Public Defender in Contra Costa County California. He earned his JD at Harvard Law School and his BS Ed from Northwestern University.   


Excerpts from the conversation:

Editor’s Note: Questions and answers have been edited for clarity and brevity

Taylor Thompson: We’ve seen unarmed black men and women killed by police before, what’s different this time?

Thompson: You know, I think that we’ve seen over decades, a number of unarmed black men and women killed by the police. I think what’s different this time are a few things – I think, first, we come off of a period of time where we were in a pandemic. So everyone was in some form of lockdown, and where others might change the channel or do something different, the nation and the world, were exposed to the George Floyd murder over and over and over again. I think you want to couple with that the fact that just a month before Ahmaud Arbery had been chased and killed not by a police officer, but by folks who I think were drawn by his race, to his conduct. And then in between those two killings, you had the Central Park incident where Miss Cooper called the police and, inaccurately and illegally perhaps, said that he was being threatened by an African American man, just before the killing of George Floyd. So I think that combination of people not being able to tune out or change the channel, or avoid being exposed to it was really coupled with the energy that had built up in the country. And so for the first time, you saw in communities that were not particularly diverse calls for police reform, you saw from sectors of the community that we might not often hear from, chants of “Defund the Police.” So I think that what you saw was the nation say “no more.” The pending question is, now that the protests have reduced the number (although they’re still going on, you would know that necessarily from the popular media). The question is, how long will the calls for change and reform happen? But I think that’s really what was different. What did you see different? I mean, how did you see it? 

Taylor-Thompson: Yeah, so I saw many of the same things that you did. And I think that your two points about the fact that this was happening during the pandemic and the lockdown, and that people had to watch, not just Black Americans but everybody was watching, and people were bored with the sameness of their days. And so they were glued to the TV and actually saw what was going on. So they experience things and particularly white America experienced things that they’re typically not encountering personally. They’re typically immunized by skin privilege and by other kinds of privileges and so don’t encounter violence, in the same ways that black folks routinely experience it. So I think this was an awakening for not just the United States, but the world. But the other thing that struck me about this, and I think, struck a chord in the country and in the world, was the casualness of this violence. You saw Derek Chauvin kneel on George Floyd’s neck, and for almost nine minutes, and the entire time he had his hand in his pocket, as though this was just normal, it was reflexive, it was routine. And the casualness of that violence was stunning. And I think that that caught people’s attention. And it, as you said, provoked people to step out, and even during the middle of a pandemic, to hit the streets, and to rise up against what they were seeing as this normalized violence against our communities. So I think that was different. And I think, frankly, the protesters were saying, we’re just not going to let this turn into a hashtag where we say wonderful things and sad things about this and then move on to business as usual. They just said, “Nope, we’re going to stop, we’re going to look at this, this country can stop because of COVID. This country needs to stop because of this.” And I think that’s what happened. 

Thompson: You know, there are two things that are interesting to me, you and I look at these incidents from through a legal lens and through a racial justice lens. But it’s interesting to me that the political discourse is changed, right. So we’ve politicized our ability to protest. So you have some who call the protest riots, and you have others who call them protests. And you also have now for the first time in our history, a preventive response. Let me give you an example. We just learned about the grand jury in Kentucky, not indicting any of the officers in the killing of Breonna Taylor. What was interesting to me was the mayor, before the indictment or lack of indictment was released, declared a state of emergency. You know, ask for all these other law enforcement resources. It is a new response to protest. And when we look at the lack of indictment, what do you think we should take away from that?

Taylor-Thompson: So yeah, the fact that the grand jury did not return an indictment against any of the officers who fired and killed Breonna Taylor was stunning, and it stunned the world, I think. And what it said to me was that, and actually, it demonstrated in plain ways how we have two systems of justice in this country, you’ll remember that police officers were shot and injured during protests in Louisville, last week, and charges against the man who shot those police officers happened within days. It didn’t take seven months and a grand jury to come up with charges against that person. So it can operate when it wants to. But what we saw was that when there’s a black woman who has been killed, this the system of justice doesn’t operate quite the same way. 

On Breonna Taylor & grand jury proceedings

 

Taylor-Thompson: So we had a grand jury that returned no indictment against any of the police officers who shot and killed Breonna Taylor, and the Attorney General actually indicated that this was a clear case of self defense. But it’s anything but clear cut. The officers entered the house with a no knock warrant. Breonna Taylor’s boyfriend reacted as anybody would to the intruders coming into your house. He called out to them and then he fired a shot, one shot, and the officers then fire over 30 shots blindly into an apartment, how that’s not negligent at a minimum reckless or even worse, I don’t understand. And how you could actually say that that’s a clear case of self defense makes no sense to me. So we emerged from, I think, that lack of an indictment with again, a clear indication and a clear message that the system of justice doesn’t work quite the same way if there’s a person of color who is the victim. 

Thompson: This has been a great wake-up call in the same way that Derek Chauvin’s treatment of George Floyd was a wake-up call for the country. Grand juries have been both a sword and a shield for prosecutors. So in jurisdictions where you have a large presumption that you will have non-diverse grand jurors, it serves as shield for the prosecutor not to make a direct file against law enforcement. If we look at Staten Island, if we look at Ferguson, those grand jury submissions were made where the prosecutors had an absolute ability to make a direct file against the police officers, but knew they weren’t going to return an indictment. There’s an old saying that people who are watching this are probably too young to know, but a prosecutor can indict a ham sandwich. The truth is, if you wanted to get an indictment in those cases, you could. I think as a policy change, we need to do a few things. I think state by state, we need to review grand jury proceedings and policy. As a matter of course, all grand jury minutes should be released post indictment or lack of true bill. I think that in some states that state legislation in some states, that’s simply an administrative function of the prosecutor’s office. And by and large, we have a lack of transparency and accountability on the part of prosecutors. The big challenge, the next challenge for racial justice is not only, or not simply, rethinking police and police conduct, is thinking about how the criminal legal system works interchangeably, right? So it’s the role of the prosecutor. It’s the role of the judge who is listening to the grand jury. I think that there needs that prosecutors, by and large, are avoided the type of scrutiny that the police have been subjected to based on Floyd. And if you look at decisions, let’s take Floyd, for example. When Amy Klobuchar was a US Attorney in Minnesota, she repeatedly refused to file federal charges against the Minneapolis police officers that were involved in misconduct and excessive force. Obviously, that came back to haunt her as an elected official. But the notion that we have not subjected prosecutor’s offices nationally, to a higher degree of transparency and accountability, I think, speaks volumes to how we need to reassess and rethink the process of the grand jury.

Taylor-Thompson: It’s a great point, and I think we may see some of that playing out in the Breonna Taylor case, since the judge has just ordered in the last day or so the release of the grand jury transcripts, and so we’ll get a chance to see what actually was presented what wasn’t presented, and perhaps be able to assess, you know, exactly how this lack of an indictment occurred. But I think you’re right, I think that you know, that the grand jury has been a blackbox and needs to be opened up, we need to take a look at what prosecutors are actually doing. You’re absolutely right. If they want an indictment, they can get one. It’s not hard to do that. And so the fact that we didn’t come out of this with an indictment seems really questionable, and makes you wonder about the integrity of the process that was engaged here.

On police, the courts, and qualified immunity

Thompson: From a policy standpoint, as far as legislation, the current debate about the United States Supreme Court has convinced me beyond a reasonable doubt that our courts are so politicized, that some of the fundamental change that we need to engage can’t happen. And so that raises the question – where do we go? And when I look at qualified immunity as a fundamental necessity of change, to really reform, how police do their work, and how the law is protecting individuals, we need to change qualified immunity at the state level. And I call for law schools, and journals, like our current Journal of Legislation & Public Policy, to hold forums and symposia around changes at the state level. So you have states like Colorado who are beginning, because of the horrendous activity in Aurora, to think about that. But where you have states like California, where there is a Democratic supermajority in the legislature, and there’s been some pretty fundamental criminal justice reform, I think you have to convene legislators from every state to say “how will you change qualified immunity in your state? And if you won’t, what is your justification given what we’ve seen nationally, to not make some fundamental changes to the way that we litigate those issues?” So I think one of the fundamental policy implications of this conversation, and what we’re seeing nationally, is a need at the state level and state houses to reform if not completely repeal qualified immunity. 

On defunding, and building new institutions

Taylor-Thompson: I want to go back to your defunding point. And you know, what we saw right after a lot of the uprisings over the summer was jurisdictions saying, Okay, let’s just cut budgets of police departments and shift it someplace else. And that’s not what we mean by defunding. We definitely believe that police departments are over bloated in in terms of their funding, and so there is room to take money from them. And as you were pointing out, you don’t need to call police for everything. If somebody falls asleep in a drive thru in Wendy’s, you do not need to call the police. And yet, that’s what we do. And we see the results. And so what we need to do is really rethink where those funds are going. And they need to be invested in other parts of the community that actually help communities. But we also need to look at the places that we’re putting those investments. We need to invest in schools, but schools are not race-free or racism-free. So we need to look at how those institutions are operating as well. We need to invest in social services and public health and mental health services. But those institutions are racist have systemic racism, as fundamentally as the policing system. And so unless we are willing to really do the hard work of looking at all these systems, and unpacking the various ways that each of these systems batters people of color, we will not see any meaningful change.