00:00 [Archival]: Thank you gentlemen. The case is submitted. We'll hear arguments next in The city of Los Angeles against Lyons.

[music]

00:07 Leon: Hey everyone. This is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about LA v. Lyons, a 1983 case about the use of chokeholds by police and whether a person who had been subjected to one can sue to have the tactic barred altogether. The court rejected the case on the basis of standing, one reason chokeholds continue to be used today.

00:33 [Archival]: And what you're watching here is officer Daniel Pantaleo putting Garner in a chokehold, and with other offices on him, wrestling him to the ground. Garner died later that day as the medical examiner ruled his death, a homicide.

00:47 Leon: This is 5-4. A podcast about how much the Supreme Court sucks.

01:00 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have cut off America's circulation like Raynaud's disease. [laughter] I am Peter. I'm here with Michael.

01:13 Michael: Hey, everybody.

01:15 Peter: And Rhiannon.

01:19 Rhiannon: Hi everyone.

01:20 Peter: Today's case is City of Los Angeles v. Lyons. This is another case about cops, in addition to our...

01:26 Rhiannon: Blurg.

01:27 Peter: Long catalog of cop episodes, and specifically it is about their use of chokeholds. It's also about the court evading its responsibility to curtail police violence by denying injunctive or forward-looking relief in cases where the police are using tactics that will unjustly hurt people, most likely, poor people and people of color in the future. And it's about a standard that the court invents in this case that makes it incredibly difficult to get forward-looking remedies in general. In other words, the standard makes it extremely difficult to get courts to tell someone, in this case, the police to stop doing something that will almost certainly harm someone in the future.

02:08 Rhiannon: Right.

02:09 Peter: Chokeholds, of course, one of the many, mostly non-lethal methods, cops have at their disposal to subdue criminal suspects and/or their own wives. [laughter] And in this case, a guy gets put into a brutal and excessive chokehold by the LAPD after which he sues, and in his lawsuit, he requests that the practice of chokehold to be halted moving forward. But the court in a five to four decision says "No, we can't stop them from using chokeholds in the future. Because even though they already put you into a chokehold once you can't prove that they'll do it again." The year is 1982. So William Rehnquist is on the court, but he's not yet the Chief Justice. The chief is still our buddy Warren Burger. And you know this case, I think is a case study in how and why justice often lagged so far behind for so many people who are wrong in this country and in how the court has used procedural technicalities to allow police departments in this country to promulgate and utilize brutal and unconstitutional tactics against its citizens.

03:21 Rhiannon: Yeah.

03:22 Michael: Yep.

03:23 Peter: So, Rhi, tell us a story. What happened here?

03:26 Rhiannon: Sorry, it won't be a nice bedtime story, but it is a story, I guess.

03:30 Peter: Yeah. It's not our usual, really, enjoyable set of facts. [laughter]

03:34 Rhiannon: Right. If you listen to this falling asleep, seek help. [laughter] So yeah, I'm having a bad week. Worst day, I feel sick. I don't wanna tell this awful story, [laughter] but here we go!

03:51 Michael: That's commitment. [laughter]

03:51 Rhiannon: That's right. Okay, so let's set the stage. The city is Los Angeles. The year is 1976. Just an aside, the three highest grossing films that year are Rocky, A Star is Born, and King Kong. And I think that's actually...

04:11 Peter: I forgot they remade King Kong in the '70s.

04:12 Rhiannon: Right. Wait, what was your question?

04:14 Peter: It wasn't a question, I just forgot that they remade King Kong in the '70s. [laughter]

04:20 Rhiannon: Oh.

04:20 Peter: It's crazy to me that in the '70s they were like, "You know, we have the technology to really make this pop." [laughter]

04:27 Rhiannon: Well, and so the three most popular films being Rocky, A Star is Born, and King Kong, that's really fitting to me for today's case, because all of those movies have sequels or remakes, and guess what we have here in this case that we're discussing today? It's a horrific story you've heard before.

04:44 Michael: Right.

04:46 Rhiannon: So a Black man named Adolph Lyons was driving his car one night.

04:50 Peter: And I'm gonna stop you right there because [laughter] I would like to have a discussion about a black man in the mid-70s named Adolph. That means in the early 50s, a woman gave birth to a young black boy, and was like, "We're gonna call him Adolph" and someone was probably like, "Isn't that a little too soon?" And she was like, "It's been like eight years." [laughter]

05:18 Rhiannon: Alright, well...

05:20 Peter: That's all I have to say about it.

05:22 Rhiannon: Okay, thank you. Thanks, Peter. [laughter] Mr. Lyons is driving his car one night around LA when he's pulled over for a broken tail light. He's 24 years old, he is unarmed, and look, like I'm no expert on de-escalation techniques or anything like that, but what happens next seems to be like putting it mildly, extremely fucked up on the part of the four officers involved.

05:49 Michael: Yes.

05:51 Rhiannon: So like I said, Mr. Lyons was pulled over for a broken tail light, but he's quickly asked to get out of his car. There's no allegation at any point that Mr. Lyons is not complying with orders or even that he had a weapon, none of that. When he's ordered out of the car, four police officers advance on him with their guns drawn, they tell Mr. Lyons to spread his legs and to put his hands above his head. Now the officers continue to get closer to him, and once he is frisked, he lowers his arms down from his head. At that point, an officer forces his arms back up again, but Mr. Lyons lowers his arm, saying that the keyring that he's holding, it's hurting his hand and he can't keep his arms up. At that point, an officer puts him in a chokehold until he loses consciousness, and when he wakes up, he is spitting blood and dirt, he's faced down in the street and his underwear are soiled. So the police give him a ticket for the busted tail light, and then they let him go.

06:54 Peter: Yeah. As soon as he comes to they're like, "Hey, that's gonna be $63." [laughter]

07:03 Michael: [laughter] Jesus Christ Peter.

07:11 Rhiannon: What the fuck is wrong with you? [laughter]

07:14 Peter: I didn't do it. [laughter] So don't blame me.

07:23 Rhiannon: Alright. So Mr. Lyons sues the LAPD, and in his lawsuit, he asks for two different remedies. First, he's asking for damages, which is the remedy you traditionally think of when someone files a lawsuit... I'm suing you because you harmed me in some way, and I should be compensated. I should be made whole. The second remedy that he's seeking, which is the subject of the case that eventually makes its way up to the Supreme Court, is injunctive relief. Now, Mr. Lyons wants the court to order an injunction against LAPD's use of chokeholds, meaning the judge would be issuing a court order that bans LAPD from using chokeholds on people in the future. So regarding the injunction, the city of Los Angeles moves to get the case thrown out. But actually, both the district court and the Court of Appeals on this case say, Yes, Mr. Lyons can sue for an injunction, and it's important to note that this is all before they get to the merits of the case. What's being fought over here is just whether Mr. Lyons has standing, which is the legal ability to sue for this kind of remedy.

08:28 Rhiannon: So the lower court says, Yes, you do have standing, and the case should proceed to the merits to see what evidence you, Mr. Lyons, can present, and the court will later decide if there's enough to issue the ban, the injunction that Mr. Lyons is seeking. And then the case makes its way up to the Supreme Court, and we're talking about it today 'cause the Supreme Court says "No."

08:48 Peter: Right. So you know Lyons is claiming that the use of excessive force by the police here violates his constitutional rights, but again, like Rhi said, what's important here is what he's asking for. He's saying that he wants money for the harm done, yes, but also he's asking for an injunction, and we've discussed injunctions in the past, it's just a court order to tell someone to stop doing something generally speaking. So he's asking that the Court issue an injunction that orders the LAPD to stop using chokeholds, but the court refuses to order the LAPD to stop. And the reason that they give is that they claim the court can only issue an injunction when it's necessary to prevent harm against the plaintiff, which in this case is Lyons.

09:29 Rhiannon: Right.

09:29 Peter: To use an example, let's say your neighbor is renovating, and you think the construction is going to damage your 38 square foot studio apartment. [laughter] I used demographic data on our listeners to target that. [laughter] So you ask the court to stop him, right? But the court's not just gonna stop him because you ask. They are going to ask that you show that the renovations are gonna cause some harm to come to you. So Lyons is saying, "Hey, make them stop using chokeholds in the future." And the court saying, "Well, even if they keep using chokeholds in the future, you can't prove that they'll use them on you. So we can't stop them from doing that." And like Rhi mentioned, this is a concept we've talked about before, often used by conservatives to impede the progress of litigation, called standing. You can only see if you've been hurt or in the case of injunctions if you can show that the injunction will prevent you from being hurt in the future. So since you can't prove he'll be hurt by police chokeholds in the future, the court tosses his request out.

10:32 Michael: Right.

10:33 Peter: And what the court does specifically is create a standard for whether they could issue an injunction called the realistic threat standard. So basically they say there's no realistic threat that Lyons will be put into a chokehold in the future so they can't force the police to stop using them.

10:47 Michael: Right, and this is, I think, really problematic. It's like this probabilistic model of standing.

10:54 Peter: Right.

10:54 Rhiannon: Yeah.

10:55 Michael: They're not saying there's no chance that he won't end up in another police chokehold, it's just... It's not a realistic chance on their judgment. But in this case, as is often the case with these, there's no real data, there's no like good objective answer. They can't say there's an actual probability. It's pretty much like a gut intuition or maybe a loosely supported conclusion.

11:20 Rhiannon: Right. They haven't even gone to trial yet, so there hasn't been evidence presented over this issue.

11:25 Michael: Right, and so what you get is their biases fill in the gaps. There is a similar case that you'll read in law school called Friends of the Earth v. Laidlaw, where this sort of realistic threat standard was met, and it was like property owners who were concerned that people were dumping pollution into their waterways. And it's like, well, yeah, everybody on the courts a fucking homeowner, right?

11:52 Leon: Right, Yep. [laughter]

11:53 Michael: And they can imagine their water getting polluted, they can't imagine getting put in a fucking chokehold by the cops, and so one of those harms seems real and one doesn't, and so the property owners get standing, but the poor Black guy doesn't.

12:07 Peter: Also though, if we're using a realistic threat standard, but people are getting choked out 'cause they have a broken tail light, seems to me like the threat's pretty realistic, you know?

12:19 Rhiannon: Yeah, yeah.

12:20 Michael: Yeah. I mean...

12:20 Peter: They're on a fucking choking spree guys.

12:20 Rhiannon: Really good point.

12:22 Peter: You gotta stop them.

12:23 Michael: I think one of the first lines in the dissent identifies Lyons as like a young Black male and I feel like that's standing. There you go. [laughter] Any police violence claim you have standing for if you're a young Black man... 100%.

12:38 Rhiannon: Absolutely.

12:40 Peter: So the court's reasoning presents what we think is a pretty obvious problem. No one can prove that they're gonna be choked out by some cop in the future, which means that no matter how blatantly excessive and unconstitutional a police practice is, no one can sue to have it halted. The court is openly acknowledging that it will allow an unconstitutional practice to continue because no one can be certain that the practice will be used against them.

13:06 Rhiannon: Yeah.

13:08 Peter: Even though everyone involved that knows the practice will be used one way or another.

13:10 Rhiannon: Exactly, Right!

13:11 Peter: It will be used against someone. This dude had a broken tail light and got choked out so bad that he shit his pants and the courts just like, "Damn, dude, that sucks, man, but I don't know what you want from us here." [laughter]

13:22 Rhiannon: Exactly. Exactly. It's ridiculous.

13:24 Peter: Is it super simple that chokeholds are unconstitutional? No, but is this case... Is this chokehold unconstitutional? Yeah, I think if you ever put it to the court directly, they would have said yes, even with the five conservatives.

13:37 Michael: Yeah, and the court's hands aren't tied. There is precedent for situations like this where a plaintiff may not have the best claim to standing, but there's an unconstitutional practice before the court that's at risk of evading review. And the court will grant standing when they want to, and literally the name of the doctrine is capable of repetition, yet evading review. And the court addresses this and they say, "Well, look, he still has a claim for damages, so it's not evading review, and he could get some money if it really is unconstitutional." But that's not...

14:10 Peter: Isn't that what we all want at the end of the day?

14:14 Rhiannon: Right.

14:15 Peter: To get choked out because you have a broken tail light, wake up, spitting blood, pay a ticket, and then get money in eight years?

14:22 Rhiannon: Right. Yeah, that's the American dream.

14:25 Michael: I think the whole point is precisely that this guy would rather just not be choked out.

14:29 Rhiannon: Exactly, exactly.

14:29 Michael: "You can sue later," is just not an adequate response to this sort of trauma, but the court says they're not really interested in having that discussion.

14:40 Peter: Right.

14:40 Rhiannon: Right. Yeah, so the court's decision not to address this, it's a conscious one. You have a plaintiff who says the LAPD put him in a terrible, horrific, violent chokehold for no clear reason, and he's asking the court to say like, "Look, that's unconstitutional and stop doing that." It doesn't get much simpler or clearer than that, so when we say that formalistic legal reasoning serves as a veil over the intentions of judges, this is exactly what we mean. All of the hand waving about procedure and standing and the proper remedy, that's all smoke and mirrors. It's obfuscation of what is, at the end of the day, a really simple issue. It's just a method for deflecting from a question that the court doesn't want to answer.

15:26 Peter: Right.

15:28 Rhiannon: I listened to the oral arguments for this case, and there's a really interesting part, which sort of makes this formalism point clear, I think. So Justice Blackmun asks a question of the government lawyer, the lawyer who's representing the City of Los Angeles. He asks a question that's about police training and about whether training policies can be improved or whether that's possible, and the government lawyer just responds, "The court's decision on this case needn't turn on police training. This is a legal question." So what Justice Blackmun is asking, he's saying, "Hey, we're talking about chokeholds, so I have a question about how the LAPD trains their cops to use chokeholds, and the lawyer for the City of Los Angeles just basically shuts that down, he says like, "We're not talking about that right now, what we're talking about here are just legal things, a legal question about standing."

16:18 Peter: Right.

16:22 Michael: Right.

16:22 Rhiannon: You know what else is a legal question, dude? Whether the police are violating people's constitutional rights in the street, like don't just say that standing is a legal question, but other questions aren't legal. That's just a choice. That's a preference.

16:34 Peter: A lot of conservative legal analysis prioritizes rules as if adhering to legal rules is sufficient in and of itself. So here you have this arbitrary rule about who can and cannot get an injunction against the police, but if you have a rule that results in no one being able to challenge an unconstitutional police practice, allowing that practice to continue unabated, to quote No Country for Old Men, "Of what use was the rule?"

17:04 Rhiannon: Exactly.

17:08 Peter: If your rule has brought you to a point where you cannot address the blatant constitutional violation that is before you, that is before the court, you need to decide which is more important, the rule or the violation of the rights of this man and the countless others who'll be affected by police chokeholds.

17:22 Rhiannon: Yes.

17:23 Michael: Right.

17:24 Peter: Call me a naive idealist, but I think that's a pretty simple decision.

17:26 Rhiannon: Yeah, no, I think that's right. And just to butt in with another thing that that brought up for me from the oral argument, I really like Brennan, Marshall, Blackmun, Stevens on the court at the same time, that feel and the vibe off of the liberal justices at this time is completely different than listening to oral arguments today, I can tell you that. They're actually interacting with each other a lot of the times, including across the...

17:53 Peter: They're kissing.

[laughter]

17:58 Rhiannon: No, they're clearly arguing with each other when they disagree with the conservatives and that kind of thing, and there's a back and forth at one point that's really interesting to me, and I'm not even sure if this will make sense the way I can read it because it is a back and forth, but Justice Brennan asks the lawyer for the City of LA, he says, "You want us to say that you're constitutionally permitted to have the same chokehold policy." Justice Burger, the conservative, pipes up and he says, "No, no. They're subject to being sued for damages." Justice Marshall says, "What recourse then does a man have who you've already killed?" Justice Burger, the conservative, says, "It's the same recourse as negligently being run over by a police car, that's a lawsuit." Justice Stevens, "Do you consider murder and negligence on the same level?"

[laughter]

18:44 Michael: Fuck, yeah, dude.

18:48 Peter: Kicking their asses, dude.

18:48 Rhiannon: Like Justice Stevens turning to Justice Burger, right?

18:51 Michael: They're like ignoring the dumb ass lawyer.

18:55 Rhiannon: Right, right, exactly.

18:56 Peter: This is why Burger has that line in his Wikipedia about not being smart. [laughter] Just getting torn up in oral argument.

19:01 Rhiannon: Right, by his own colleagues.

19:02 Michael: Just going back to a point Peter made, where he says it's an easy choice between vindicating someone's rights or following a stupid rule. Just highlighting how stupid the rule is here. The dissent, I think, does an excellent job of that. What Marshall in dissent says is like, "Look, Lyons undisputedly has standing to sue the city for money here." Like we're all on the same page with that. And further, part of that lawsuit, a big part of that lawsuit, will be about whether the city has policies or practices about chokeholds that are unconstitutional. And so it's absurd to say that the courts are constitutionally prohibited from adjudicating the request for an injunction in the very same lawsuit about the very same policy that they're hearing anyway. It's bizarre, and it's not that the trials would be exactly the same. There would be a few different questions related to the appropriateness of the remedy, but that's it. That's when you discuss the appropriateness of the remedy, at trial.

20:08 Rhiannon: Exactly. Right.

20:09 Michael: They say this is a standing decision, but really what they're just saying is like, injunctions just aren't available here. Right?

20:15 Rhiannon: Right. Yeah, that's the bottom line, and that's what I really appreciate about Justice Marshall's dissent here is pointing out exactly that absurdity so that we know what the court is doing, which is avoiding responsibility by using these rules about standing, and that has greater implications than just this case. So this use of standing as the bar to accessing remedies for people who have been harmed by the government. It becomes a trend at the Supreme Court and in the lower courts after this case. Pretty quickly after the Lyons decision is handed down, legal scholars start to point out that this is kind of the end of an era, an end to what's sort of broadly known as public law litigation, and that's because, at the time, a lot of the remedies you were seeking was an injunction. That you were getting an institution, a government body, a police department, whatever it was, to stop doing something unconstitutional. But with this case, that sort of shuts off and says a lot of litigants, a lot of plaintiffs do not have standing to even seek an injunction to even get into court to ask for one. And that's exactly in line with the post-Warren court trend that we've noted many times on the podcast, where distinctly ideologically conservative chief justices who were appointed by Republican presidents, they guide the Supreme Court in dismantling Civil Rights wins of the Earl Warren era on the supreme court and the civil rights movement.

21:43 Peter: Right. So this becomes like this big turning point in how civil liberties and civil rights litigation is conducted because for decades prior, you had the ability to go in the court and ask for these sort of affirmative remedies where you're asking like, stop them from doing this, or make them do this to protect my civil rights. And the Court is basically saying here, signaling, we're not going to be doing that anymore, and it becomes a huge impediment to actually protecting people's civil rights in this country.

22:15 Michael: Right, the court is saying, Look, we're not interested in reining in the government or the police at all, and if you're wrong, the best thing you can do is hope to get some money damages after the fact.

22:27 Peter: Right.

22:27 Rhiannon: Right, but we're not gonna change anything about how they actually conduct themselves.

22:31 Michael: That's right.

22:32 Peter: Right. That's for the suits in Washington. [laughter]

22:35 Michael: Not the robes.

22:37 Peter: Not the robes. Not the robes. [laughter] Alright. Let's do an ad.

0:22:46 Peter: So the realistic threat standard, it's not just applied to police brutality cases, it can be applied to any sort of public interest cases, right? Environmental cases... Is there a realistic threat that you're gonna be harmed by this pollution. It's something that has broader applicability and is a huge impediment to plaintiffs who want to sue over all sorts of wrongdoing, especially where that wrongdoing is sort of hard to pinpoint or if it's hard to know when and how it might occur. Another sort of thing lingering here is that due to all sorts of immunities, criminal prosecution against the police is basically impossible. So what you're effectively talking about here is a situation where you have nothing that can address the fact that police can do this on a forward-looking basis, like we have laws saying you can't murder, you'll get in trouble, right? And an injunction would be the same sort of thing, it's functionally a law against it, and because we don't have that sort of criminal law check on police conduct, injunctions are a huge weapon, a huge tool that institutions like the ACLU rely on to actually limit the sort of police conduct that they believe violates the Constitution. Without it, there's really nothing to do that.

24:02 Rhiannon: Exactly.

24:02 Peter: All you have is...

24:03 Rhiannon: There isn't another legal accountability mechanism.

24:07 Peter: Exactly.

24:08 Michael: Right. There are a number of ways you could, in theory, sue the cops. But all this leaves is like the hardest one in a sense, right? Because it's like suing individual cops they can get qualified immunity and injunctive relief would modify future behavior. So what you're talking about is damages against the city or the county or whatever itself, which requires this extra showing of a policy or a practice or a training that makes the city in the department liable and not just individual cops, and so there's this higher showing as opposed to just like, this shithead cop violated my rights.

24:47 Rhiannon: Yeah. Exactly.

24:49 Michael: So it makes the only avenue for suing the cops an uphill one. And then makes it impossible for you to get perspective relief on top of that, where you stop the practice. It's pretty ridiculous. It's like a fucking... Its Kafkaesque. It's like a labyrinth of dead ends.

25:05 Rhiannon: You wake up one day and you're a cockroach and you can't fucking... You can't fucking sue the cops. [laughter]

25:09 Peter: So this goes hand-in-hand with another tactic that the police used to avoid the courts addressing the constitutionality of their practices, which is big settlements.

25:26 Rhiannon: That's right.

25:27 Peter: If it feels like the court is about to rule a police practice unconstitutional in a case where they're being sued, they will settle that case so that the court doesn't ultimately decide it. They pay out so that they don't have to have bad precedent created that could result in far more payouts down the line. It's a very frequently used tactic by police unions across the country.

25:49 Rhiannon: That's right. And when we say they pay out, we have to think about who that really hurts. It's not money that comes...

25:53 Michael: We pay out.

25:55 Rhiannon: Exactly, we do as taxpayers. That's city money or county money or whatever that goes to paying those settlements.

26:01 Peter: It's a real tough decision, but at the end of the day, we're gonna give you two million dollars of your friends and family's money. [laughter]

26:10 Rhiannon: Yeah, exactly.

26:12 Michael: Yeah.

26:13 Peter: And this is a great example of how and why the actual operation of the law in this country undermines the goal of achieving justice. It's not just that the process of litigation is horribly slow, which it is... Keep in mind, the chokehold incident occurred six years before the Supreme Court hears the case. It's also that our legal system is designed in many ways to resolve issues that occurred in the past rather than prevent injustice from occurring in the future. In other words, the way the legal system functions is largely reactive rather than proactive. If you ask most conservatives and maybe most lawyers why that's the case, they'd probably say that it's because creating proactive solutions to problems is really the prerogative of the legislature, which is another way of saying that, it's too political. I think, I just think that's bullshit. A court being proactive is not necessarily more or less political than it being reactive, a court stepping in to stop an unconstitutional practice isn't less political than it not stepping in and letting it continue.

27:14 Rhiannon: That's right.

27:15 Peter: Both of these things are political decisions, they have a real impact on actual people. There's no non-political option, there's no neutral course. Allowing the police to continue applying unconstitutional chokeholds isn't less political than stopping it?

27:33 Michael: Correct.

27:33 Rhiannon: That's exactly it.

27:33 Peter: It's a clearly political decision. And it's a decision that's reflective of the political alignment of the court at the time. The 1970s, you have to sort of envision police power, this is a case where they don't even have an excuse for choking this guy, right?

27:51 Rhiannon: Right. Yeah.

27:51 Peter: These days, they would have been like, "Oh, we found a weapon on him" and they would have done a press release about how the guy had a, whatever, some domestic violence incident like eight years ago. This is when the cops were just running bat shit wild like they could do whatever they wanted. They choked this guy out, he sues and they're just like, "Yeah, no, we got his ass." [laughter]

28:11 Rhiannon: Right, right. Exactly.

28:13 Peter: He wouldn't put his hands up, so we choked him out.

28:15 Rhiannon: Right.

28:16 Peter: And the conservatives in the court are like, "Mm-hmm." [laughter]

28:17 Rhiannon: Yeah, yeah, it's as easy as that in the Burger court.

28:22 Peter: This is the all related to something you'll often hear and is often explicitly taught in law school, and that's that the law is inherently conservative, and that is horseshit. [laughter] The law is not inherently anything, right? It don't have to be slow moving.

28:40 Rhiannon: The law is words, that's what it is. [laughter]

28:43 Peter: There's nothing about how we practice and understand the law that prevents a court from ordering the cops to stop using chokeholds. The law is conservative because it's controlled by conservative institutions and promulgates conservative principles, that's why it's conservative in practice, but it's not inherently conservative. The only reason people say that is to explain and excuse the failure of the law to provide something that resembles actual justice.

29:09 Michael: Right. I just had a thought, and I think it's worth mentioning is that there's a sort of shining light example in my head right now of a case of the court not being reactive, and that's Miranda v. Arizona.

29:23 Rhiannon: Yeah.

29:23 Michael: That's where they said, look, you have to do this. It's not just that you can't do X. You have to do Y. When you arrest someone, if you wanna talk to them, you have to tell them they have the right to remain silent. You have to tell them they have a right to attorney. If they invoked those rights, you have to shut up, leave them alone, and get them an attorney. And this is a cherished thing, it's one of the most well-known rights that everybody knows, everybody thinks is important.

29:51 Rhiannon: Right.

29:53 Michael: It is vindicated entirely, that the court got very proactive about how the police have to behave. And everybody thinks it's a good thing.

30:00 Peter: Yeah, and not to mention that, although conservatives on the core have tried to hack at Miranda rights for many years, it has taken them half a century to get anywhere, they have made proactive taking them an unbelievable amount of time and effort.

30:12 Rhiannon: Right.

30:13 Peter: And I think we should talk a little more specifically about how police rely on the slow reactions by courts to their tactics to get away with brutalizing members of the community. It's very common that police will officially roll back certain techniques and tactics when public pressure starts accruing or when a court starts to question it, only to slowly begin to continue or re-introduce the practice over time.

30:38 Rhiannon: Yeah, exactly. I was reading some stuff in preparation for this case and found not only some really good commentary right after the Lyons decision comes down, but also information now, decades after the Lyons decision, about what effect this case had on police behavior. So, for example, like Peter said, chokeholds, they don't have a lot of popularity or approval in the public, and police departments get pressured to change their own policies. So in 1985 without a remedy from the courts in the form of an injunction in the Lyons case across the country, the New York Police Department agreed that chokeholds were potentially lethal and unnecessary, and so NYPD announced that it would no longer use them routinely. We all know that policy failed and the NYPD kept on using chokeholds, but after more deadly chokeholds and the NYPD killing people this way, the commissioner in 1993, Commissioner Raymond Kelly, banned their use altogether, but we know that the year Eric Garner was killed, for instance, the city received more than 200 allegations of police chokeholds. So chokeholds were deadly and unnecessary in the early '80s when the Lyons case went to the Supreme Court, they were deadly and unnecessary decades later when the NYPD murdered Eric Garner, and the Supreme Court has nothing to say about it because the Lyons decision stands for the proposition that there just isn't enough evidence to show a future realistic threat of chokeholds being deadly and unnecessary.

32:12 Peter: Amen.

32:13 Michael: Right.

32:15 Rhiannon: So this always brings me back to... I know I've said this before, but this always brings me back to the notion of who polices the police? There has to be institutional checks and accountability on the police, frankly. And the court purposely in these cases takes itself out of being the institutional, legal mechanism for accountability on the police, which is to say it makes itself a weaker institution, but, also it reminds me that we get mad a lot of the times at grand juries and prosecutors who don't vindicate people's rights, people who have been hurt by the police, but we should also be applying political pressure on the court.

32:55 Peter: Yeah, absolutely.

32:57 Michael: Agree 100%.

32:58 Rhiannon: Here's the thing that makes me so mad about this case, if you have two brain cells in 2020, you know that the police are a deeply rotten institution. You know that the practice of American policing is ineffective at fulfilling its stated purposes, it's expensive, and it's dangerous to large portions of the public, and it makes us less safe. But I think what people maybe don't know or don't widely talk about is that the police are like this because of the law, and in particular, in the case of the police, it's my opinion that it's exactly this kind of judge-made law that has institutionally upheld these kinds of practices. The Power wielded this way between the court and the police frankly, it's an institutional macro-aggression on people of color in this country, and Lyons is just one example. The police love to individualize harm, to explain away the mistakes that they make, they love to say something like, for example, it's not a department-wide practice or policy, maybe an individual officer made a mistake, maybe there's a bad apple, right?

34:00 Rhiannon: But the court is doing that too, we all know that police conduct themselves with an act first, justify it later mentality. We know now that they operate in a legal space where they can prioritize supposed officer safety over the safety of our communities. And that's because of the court and the way that the court has individualized the harm that's done by the police over and over and over again. Saying that a man who has been nearly killed by a police chokehold, who has permanent damage to his throat by a police chokehold. Can't challenge the use of a future chokehold because he can't individually prove that the police will put him in another potentially fatal chokehold is absurd. And it's absurd because it's individualizing harm that is racist and falls on an entire section of the community not just one man.

34:51 Michael: That's right.

34:51 Rhiannon: The court isn't acting like an institutional check on the police, it's acting in concert with the police to perpetuate racist violence.

34:58 Michael: That's right.

35:00 Peter: Yeah. And one consequence of how slowly courts move on this shit is that any efforts by civil rights organizations to use litigation against the police department essentially becomes a game of whack-a-mole where it takes years to strike down these practices while the police can just alter the practice in question, just enough to make it like potentially Constitutional or just move on to using a slightly different violent practice that has the same basic effect. And if courts were empowered to move more quickly and act more proactively, you could see an end to this sort of cycle. You can sort of see over time... I would love for one of our listeners who knows more about police tactics to weigh in on the evolution of some of these 'cause you can just see that people were like, "Well, why do you keep killing people in these situations?" And they were like, "Don't worry. We've invented a device that simply shoots them with electricity all throughout their body to the point where they will freeze up and collapse on the ground, so don't worry, we've created an incredibly humane solution." [laughter]

36:03 Rhiannon: Right, right. Problem solved.

36:03 Peter: It's like how the death penalty evolves, where they were like chopping off your head that is grotesque, hanging that is grotesque, we're gonna put you in a room and slowly fill it with gas... Just class it up in here, right? [laughter] And then they were like, No, that's awful. Let's do the electricity until they die thing, it's gonna take 10 minutes and they're gonna slowly succumb to the electricity. And then eventually someone was like, "No, no, no, that's insane. Let's do terrible poison in their body. Is this good?"

36:33 Rhiannon: Strap em down and inject it.

36:35 Peter: It's like, there's no good way motherfuckers. [laughter] And it's the same thing with cops. It's like, No, dude, as long as your goal is to violently accost and subdue people, it's gonna be horrific.

36:45 Rhiannon: Exactly '

36:48 Michael: Yes.

36:49 Peter: And this case struck me in particular because the court notes that the LAPD did in fact halt the use of chokeholds in the wake of this incident. And I thought that was interesting 'cause this was in late 70s, early 80s.

37:03 Rhiannon: Right.

37:03 Peter: But just about three months ago, I read an article about how the LAPD was gonna stop using chokeholds following the death of George Floyd.

37:11 Rhiannon: Hmm.

37:13 Michael: Interesting.

37:14 Peter: So in short, in the late 70s or so, the LAPD said they would stop using chokeholds, almost certainly so that they could look like they were acting in good faith while this case played out in the courts, but once the coast was clear they started using them again for 40 years.

37:27 Rhiannon: Yeah.

37:28 Peter: So the court's failure to address this led to 40 years of police abuses. That's the cost of a court that isn't proactive, right? That doesn't try to actively solve these problems. And to put this in a more concrete human terms, if in 1982 the Supreme Court holds that chokeholds are unconstitutional, Eric Garner is probably alive today, and not a lot of people believe me when I say Warren Burger killed Eric Garner, but it's true. He did it. He fucking did it. [laughter]

37:58 Rhiannon: Yeah. And that's how he should be remembered.

38:00 Peter: A moron who killed Eric Garner. [laughter] I'm joking, but I'm not, right? The conservatives on the court treat things like the right to sue or the right to an injunction as if they're abstractions, but they're not abstractions. Eric Garner's life isn't an abstraction, it's the natural consequence of a system that fails to empower people to protect their own civil liberties. So yes, when the court is purposefully ignoring the inevitable violence caused by its decisions, the blood is on their hands to some degree, and they shouldn't be allowed to hide behind the abstraction of the law.

38:37 Rhiannon: Yes.

38:37 Michael: Right.

[music]

38:43 Peter: So next week, we are taking a break, but week after that is Ashcroft v. Iqbal. A case about a man who was detained rather violently after 9/11 and how the Supreme Court used his case to transform litigation in this country into something a little more friendly to corporations and the government.

39:06 Rhiannon: Right. It's a deeply racist...

39:08 Michael: It's super awful.

39:11 Rhiannon: And we're also planning a Q&A episode to answer your questions. You can email or call us and leave a voicemail with your question. Email us at fivefourpod@gmail.com, or call us 512-222-8720. Hit us up, bitch.

39:34 Peter: No personal questions. [laughter]

39:38 Michael: Five four is spelled out in that email address.

39:41 Peter: Something we've never once clarified on this podcast. [laughter]

39:47 Rhiannon: If you followed us on Twitter, you would already know. 'cause that's our @fivefourpod.

39:53 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY our theme song is by Spatial Relations.

[music]

40:18 Leon: From the Westwood One Podcast Network.