by Sherry F. Colb
In my Verdict column for this week, I discuss Floyd v. City of New York, a decision from Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York, holding that the city's stop-and-frisk practices violated the Fourth and Fourteenth Amendment rights, respectively, against unreasonable searches and seizures, and equal protection. I explain in the column that I find quite persuasive the court's conclusion that police officers in New York, with the encouragement of (and pressure by) their superiors, carried out searches and seizures that lacked a basis in reasonable suspicion and that regularly discriminated on the basis of race. I suggest, however, that notwithstanding the validity of these conclusions, one could plausibly have used a different measure for determining racial motivation than the court decided to use. And in some cases (though not in Floyd), the distinct measure could serve to exonerate the motives of people whose actions might, at first glance, appear attributable to race or other suspect classifications.
In this post, I want to highlight a broader phenomenon that I think is in play here. Our current law of equal protection requires plaintiffs to prove not only that an outcome was unfair and racially disparate but either that the law used an express racial criterion (not relevant here) or that the actors involved (whether police, public schoolteachers, or other public officials) acted with racially discriminatory intent. This means that even if one or more racial groups suffer an unfair and racially disparate distribution of benefits and burdens, they have no constitutional cause of action if the government actors' motives turn out to have been non-racial in nature. Racial inequality is not enough, then, for a complaint -- there must be a perpetrator with bad motives behind the inequality.
The broader phenomenon is the fact that in general, when victims suffer but have no perpetrator to blame, the victims cannot recover damages or enjoin their victimization from continuing, and they rarely attract the same level of concern or empathy from others that victims of bad actors do. If someone deliberately hurts you, then you can sue that person (or his or her employer), but if you are hurt through no one's fault, you are on your own. I think the inclination to assign blame is hard-wired into people. Even when we stub our toes on a chair, we have been known to kick the chair, as though an inanimate piece of furniture were somehow to blame for our toe pain, as though without some makeshift perpetrator, the injury would not be real. Oliver Wendell Holmes makes this point in The Common Law.
I think our tendency to assign blame, though understandable as a feature of agency-seeking thought patterns that may have served us well evolutionarily, has a dark side. If we cannot find a perpetrator for a victim's injuries, our inclination is to blame the victim. If there can be no victim without a perpetrator, then blaming the victim makes sense: there must be someone to blame, and if that someone does not exist outside of the victim, then he must be the victim himself. This tendency is destructive. It means that when someone suffers, we typically add insult to injury by doing little to end the suffering while simultaneously stigmatizing the one who suffers as having only himself to blame.
In the context of race, this is a familiar story. One looks at the racial disparity in the prison population and blames either the racism of the population (identifying a new Jim Crow) or the bad behavior of African Americans. People react similarly to high-profile cases in the news. Much of the population split quite dramatically, for example, on the case of Trayvon Martin and George Zimmerman. Many on one side believed that Zimmerman was a racist vigilante looking for the opportunity to gun down an African American youth. Many on the other side took the view that Martin physically attacked Zimmerman without provocation, some pointing to a photo of Martin with guns and marijuana plants to prove that he was a "thug." In seeking to resolve the dispute in one or the other way, the temptation was to identify one of the people as evil and malign and the other as innocent, but such oversimplifications are often inadequate to the task of explaining what went wrong. As some have pointed out, one can easily imagine a scenario in which both Zimmerman and Martin, under the circumstances they faced, were lawfully entitled to "stand their ground" under Florida law.
The problem, in other words, may be structural rather than attributable to someone's or some group's bad actions. I think we are frequently inclined to exclusively look backward and ask whom to blame for a bad outcome. But it can be far more productive and truer to the facts of victimization in the real world to also look forward and to ask what we can change to make prior bad outcomes less likely to recur in the future. Looking for a "bad guy" can be satisfying to an elemental love of retribution and righteous outrage. But victims without perpetrators are no less deserving of our concern, and all victims need more from us than a willingness to point the finger at a real or imagined evildoer. Sometimes, there really are villains. But often, there are not, and a willingness to accept this and nonetheless to champion the needs of victims is what is called for.