We live in dark and dangerous times. No end is in sight.
Generally, I feel either uncertain about what I should do or how I can mitigate the danger. So I write.
I write even though I am never sure who will read my prose or what difference my thoughts and arguments make to them.
I write because it is what I know how to do.
I write to leave behind evidence that I, alongside the many who have taken to writing and those who have taken their grievances to the street, did not stand by in silence.
I am not alone in thinking about what it means to write in dark and dangerous times. I take solace from that sense of community, and from the writings of others. Without suspecting, however, that I might find that it in a judge’s ruling, I read an extraordinary opinion released on August 4 in a case concerning police misconduct.
It was authored by Federal District Judge Carlton W. Reeves. The judge, an African-American man appointed to the bench in 2010 by President Obama, sits in the Northern District of Mississippi.
Reeves was ruling on a suit brought by Clarence Jamison, a Black man who was stopped by a white Mississippi officer, Nick McClendon, on the pretense that his temporary license plate was “folded up.”
Jamison, who has neither a criminal record nor a record of traffic violations, was detained on the side of the road for almost two hours. During that time, McClendon lied to Jamison, falsely accusing him of carrying cocaine and badgered him, asking five times for permission to search the vehicle. He ignored Jamison’s refusals until, exhausted and frightened, he “consented” to McClendon’s request.
After a painstaking and thorough search, which did thousands of dollars worth of damage to Jamison’s car and property, McClendon turned up nothing, and Jamison was allowed to leave.
Traumatized, he survived and sued Officer McClendon, seeking monetary damages for the violation of his Fourth Amendment rights.
The defendant moved for summary judgment claiming that even if the facts were as Jamison alleged them to be, he cannot be sued for his actions because of the doctrine of “qualified immunity.”
That judicially contrived doctrine allows lawsuits against government officials to proceed only when officials violate someone’s “clearly established” statutory or constitutional rights. It requires courts to determine whether a hypothetical “reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.”
Qualified immunity has come under increasing criticism in the wake of the killing of George Floyd, but as recently as this past June, the Supreme Court refused to reconsider it.
Judge Reeves acknowledged this fact. “Qualified immunity,” he wrote “is the law of the land and the undersigned is bound to follow its terms absent a change in practice by the Supreme Court.”
But he used his opinion to deliver a blistering criticism of the law he was required to follow and to memorialize the miscarriages of justice that it has helped to perpetuate.
That memorialization began on the first page of his opinion, where Judge Reeves listed some of the circumstances in which police had killed Black people.
Clarence Jamison wasn’t jaywalking.
He wasn’t outside playing with a toy gun.
He didn’t look like a ‘suspicious person.’
He wasn’t suspected of ‘selling loose, untaxed cigarettes.’
He wasn’t suspected of passing a counterfeit $20 bill.
He didn’t look like anyone suspected of a crime.
He wasn’t mentally ill and in need of help.
He wasn’t assisting an autistic patient who had wandered away from a group home.
He wasn’t walking home from an after-school job.
He wasn’t walking back from a restaurant.
He wasn’t hanging out on a college campus.
He wasn’t standing outside of his apartment.
He wasn’t inside his apartment eating ice cream.
He wasn’t sleeping in his bed.
He wasn’t sleeping in his car.
He didn’t make an ‘improper lane change.’
He didn’t have a broken tail light.
He wasn’t driving over the speed limit.
He wasn’t driving under the speed limit.
No, Clarence Jamison was a Black man driving a Mercedes convertible.
Reading the list is devastating. It is a powerful indictment of racism in policing delivered in a series of simple declarative sentences. It is written in the stark style of a memo, and it serves as a reminder of how dangerous that police stop was for Clarence Jamison.
But Reeves wasn’t done. He offered a detailed history of the steps taken by the Supreme Court to protect police from being held legally accountable for violating the rights of citizens, particularly Black citizens, and the analysis it has offered to justify doing so.
Then he asked, “When in this analysis will the Court look at the elephant in the room—how race may have played a role in whether Officer McClendon’s actions were coercive?”
As if delivering a lecture about the power of sociological jurisprudence, Reeves insisted that “Jamison’s traffic stop cannot be separated from this context. Black people in this country are acutely aware of the danger traffic stops pose to Black lives.”
In a reprise of his opinion’s opening, he reminded his readers of the injustices done in America “where Black people are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles.”
Acknowledging that he did not “envy the Supreme Court’s duty in these situations” and that he did not have “any perfect solutions to offer,” he nonetheless called on Supreme Court justices to use their “imagination” to find a way to “remove the impenetrable shield of protection handed to wrongdoers.”
And he ended his decision with an urgent appeal: “Let us waste no time in righting this wrong.”
Reeves’s opinion is an example of writing’s power to record a history of the present, and, in that history, to preserve the present’s pained voice. It is an affirmation for all who sometimes wonder whether they should write in these dark and dangerous times.
Even as Reeves fulfilled his responsibility to apply the law and follow precedent, he did something innovative and important with the genre of the judicial opinion. He turned it to the urgent task of memorialization and to the work of calling law to the task of redemption.
His writing chronicles the injustices of the present moment. But it also appeals to the imagination to conjure a fundamentally different, better reality even if that reality is beyond our field of vision.
Like great dissents written by Supreme Court justices, Reeves appeals, as former Chief Justice Charles Evans Hughes famously said “to the intelligence of a future day,” when new decisions may correct the injustices that Reeves’s opinion so powerfully documents.
