Law and Violence

PJohn Inazu, JD, PhD, associate professor of law

The most important thing I learned in law school was that the law is violent. In the unforgettable words of Robert Cover: “Legal interpretation takes place on a field of pain and death.” Lawyers, judges, politicians, and police officers—and grand juries—don’t interpret poetry. They interpret laws and facts. And those interpretations have consequences. As Cover notes: “When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”

Legal interpretations pronounce guilt, deny custody, demand payments, and destroy lives. These are violent acts. The grand jury’s decision not to indict Darren Wilson was a violent act. Like many acts of legal interpretation, it confronted two different narratives, two different claims of truth and justice, and chose one over the other. In affirming one narrative, it necessarily negated the other. And there were consequences to that act.

The violence of legal interpretation does not make the grand jury’s decision a moral failure. Nor does it make the grand jury in any way responsible for the physical violence that has ensued. Rather, the decision is one of many violent acts within the violent system of law that we inhabit.

The grand jury would not have escaped the ubiquity of law’s violence with a different decision. Its interpretive act would still have chosen between two narratives, and its act would still have had consequences. In fact, it’s possible that the decision not to indict was the correct interpretation of law and facts. I can’t answer that question. I haven’t evaluated the evidence presented to the grand jury, and even if I were to do so, I could never replicate the deliberation that preceded this particular decision by these twelve people.

I do know, as my friend Chad Flanders has observed, that Missouri’s use-of-force statute—the law through which these facts had to be channeled—is a shockingly broad law that risks grave injustice. And although it looks as though the grand jury was instructed under a better standard, we may never know what expectations and baselines the Missouri law created in the mind of Officer Darren Wilson. We may never know if a different law might have led to a different answer to the question: “Is there any reason why you didn’t wait in the car until your backup came?”

Missouri’s flawed use-of-force law was in place long before the day Wilson shot and killed Michael Brown. So were many other flawed laws in Missouri and around our country that affect law enforcement, criminal justice, housing, employment, credit, and education. Those laws are interpreted, and their interpretation drives actions with consequences. The law that structures our society kills people. Some of the people it kills are innocent. All of the people it kills are human.

Our flawed system of law is still far better than those that govern many people around the world. It is less violent than many alternatives, and less violence is no small thing. But less violence is still violence. And less violence does not always feel that way to those who are most vulnerable to abuses and injustices.

Some of us will pretend otherwise—we will mask the reality of the violence of the law with suits and ties and pristine courtrooms. We will talk in abstract terms of “justice” or “process” or the “rule of law” without asking the harder questions of the flawed laws that distort those concepts. But we can choose to do otherwise. We can recognize that the violence of the law doesn’t just raise the stakes for law’s practitioners—for lawyers, judges, politicians, and grand juries. It also raises the stakes for the rest of us who inhabit the world that it shapes.

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  • John Reynolds

    This really reflects a lack of understanding of what the police do, and why they do it. Michael Brown was a felon, who had already been shot. And you think Darren Wilson should’ve waited in his car??? His duty at that point was to arrest him. And I can assure you that Darren Wilson did not consider any legal standards relating to the use of force, because there is one overriding principle that trumps all others…if you believe your life is in danger, or the life of someone else, then deadly force is justified. When Michael Brown decided to attack Darren Wilson through the window, at that point Michael Brown signed his own death warrant. That is a serious felony for which he would likely have gone to prison for. Outside the car all he had to do was obey Wilson’s commands. That’s right, OBEY! At that point he was being placed under arrest. Had he obeyed there wouldn’t have been 25 feet of blood back in Wilson’s direction. Everyone keeps moving the goal posts in this case in order to sound relevant. Now that the evidence clearly shows that this case had absolutely nothing to do with race, and everything to do with crime, we’re now down to making our cause Missouri’s deadly force laws?? The standards are irrelevant when you are being attacked by someone who is bigger, stronger, high on drugs, and who might actually get your gun away and kill you. The grand jury did their job. END OF STORY!!!!!

  • Tracy Collins

    The “Fleeing Felon” law currently on the books in Missouri regarding deadly force. (Note the use of OR instead of AND):

    “A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only (1) When such is authorized under other sections of this chapter; or (2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested (a) Has committed or attempted to commit a felony; or (b) Is attempting to escape by use of a deadly weapon; or (c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.”

    Based on the way this law is written, it is unlikely that a jury would have been able to find Wilson guilty of a crime, even if they had been given the chance.

    This kind of wording protects police officers who use deadly force; but it doesn’t offer much protection for the (dead) recipient of that force. Since it only requires a “belief” on the part of the officer, it can never be disproven.