Patterns of Injustice: Police Brutality in the Courts

Abstract

This article is concerned, most generally, with the judicial tendency to anecdotalize governmental misconduct - to view instances of misconduct as isolated rather than systemic. More specifically, it is concerned with the impact of this phenomenon in the context of systemic police brutality. It argues that police brutality is permitted to flourish by a series of interlocking institutions that characterize brutal acts as isolated and anecdotal, and it focuses particularly on the courts' role in this acquiescence. The courts permit and even implicitly condone police brutality through a number of substantive and procedural doctrines that fragment patterns of misconduct. The article argues that although it is important to study each of these doctrines individually, the tendency to anecdotalize police misconduct has more basic explanations that transcend particular doctrinal devices.

Part I examines the phenomenon of police brutality, with particular attention to the ways in which patterns are masked. Section A takes a detailed look at one pocket in which police brutality and even torture have long thrived: Chicago's Area Two Violent Crimes Unit. Section B asks whether the story told about Area Two is itself anecdotal, or is representative of a larger pattern, and describes more generally the attributes of police brutality as practiced in the United States, with attention to, among others, the Louima and Diallo cases in New York.

Part II seeks to understand the pattern of fragmentation that characterizes the judicial reaction to police brutality. Section A suggests that the literary notion of anecdote, with its concerns about irrelevant detail, the linkages among seemingly disparate acts, and the problem of judging representativeness, can help us think about the patterns of governmental misconduct and why they are so often ancedotalized. It suggests that judicial decisions about what details are connected, relevant or representative are not merely mechanical, but are informed by cultural, social and political assumptions. Section B posits several such assumptions that may lead judges to view patterns of governmental misconduct as a series of disconnected events. These include: the assumption that the status quo is coherent and just; the use of selective empathy; the fear of destabilization and chaos; the need for individual stories of motive, fault and blame; reliance on the common law paradigm; and the preference for judicial insulation. The article illustrates the effect of these assumptions in the police brutality context.

Keywords: police brutality, judges, torture, literary theory, representativeness