On the Other Hand…

Events that shape and affect our society sooner or later resonate in our political institutions. I include under the rubric “political institutions” all state and federal courts. And of course the most authoritative pronouncements on the law and its application come from the U.S. Supreme Court (refuse to write “SCOTUS” - sounds like the name of a pet. “Here SCOTUS, come here SCOTUS, no SCOTUS.” Don’t go there.) I think we all agree that the tasks of all courts, and particularly our nation’s high court, involve more than calling “balls and strikes,” though that is an essential element. Court decisions do involve issues of national importance that reflect profound changes in our society and culture. Brown v. Board of Education comes to mind. The recent series of police shootings of Black suspects caused our country and other nations to focus on persistent decades of racial inequality. And this in turn compelled our state Supreme Court to issue a declaration signed by all members of the court reflecting a commitment to social justice. It is remarkable that this declaration was not memorialized in an opinion, but stood alone, signed by all the justices. The declaration is compelling, moving, and profound. It states: “In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all. We must, as a society, honestly recognize our unacceptable failings and continue to build on our shared strengths. We must acknowledge that, in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable. These are burdens particularly borne by African Americans as well as Indigenous Peoples singled out for disparate treatment in the United States Constitution when it was ratified. We have an opportunity, in this moment, to overcome division, accept responsibility for our troubled past, and forge a unified future for all who share devotion to this country and its ideals. We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person. In our profession and in our daily lives, we must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth." And this takes me to a recent case, B.B. v. County of Los Angeles (2020) 10 Cal. 5th 1. The case involved sheriff deputies attempting to subdue an arrestee, Darren Burley, an African American. One deputy pressed one knee into the center of the suspect’s back and placed his other knee onto the back of the suspect’s head near the neck. Burley died of suffocation. Sound familiar? Plaintiffs, the decedent’s child and estranged wife, sued for damages. The case involved an interpretation of Civil Code section 1431.2, subdivision (a) enunciating principles of comparative fault in civil cases. The court in a majority opinion, written by Justice Ming Chin, held that section 1431.2, subdivision (a) does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors including a plaintiff contributed to the injuries. Principles of comparative fault do not require a reduction of an intentional tortfeasor's liability based on the acts of others. The defendant sheriff deputy who caused the death is not entitled to a reduction of his liability for noneconomic damages based on any negligence of the decedent or other defendants. In footnote 2, the B.B. court acknowledged that the decedent was African American. “We are cognizant that the facts of this case bear similarities to well-publicized incidents in which African Americans have died during encounters with police. These incidents raise deeply troubling and difficult issues involving race and the use of police force. But the question plaintiffs raise in this case—whether and how section 1431.2 applies to intentional tortfeasors—does not turn upon either the decedent's race or the fact that a law enforcement officer, rather than a civilian, committed the intentional tort.” And here I go again, finding something remarkable in the thought-provoking concurring opinion of Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar. I subscribe to Justice Liu’s views. But I was struck by the rebuke levelled at the majority opinion. Liu acknowledges that the wrongful death judgment “affords a measure of monetary relief to Burley's family.” He goes on to say the majority opinion “does not acknowledge the troubling racial dynamics that have resulted in state-sanctioned violence, including lethal violence, against Black people throughout our history to this very day. (See Felker-Cantor, Policing Los Angeles: Race, Resistance, and the Rise of the LAPD (2018); Coates, Between the World and Me (2015); Baldwin, The Fire Next Time (1963).)” I note that he cites James Baldwin’s “The Fire Next Time.” I read that work and attended a lecture in the early 60’s at Berkeley where James Baldwin, John Cheever, and Philip Roth appeared on a panel. It was worth cutting property class for that event. I still recall to this day that Baldwin spoke of offenses to Black people occurring in the name of the white population, allowing “tacit toleration of the intolerable.” I did not interpret Baldwin’s observation as an indictment, but rather a call to rouse the white population from apathy and neglect. It was a call to jettison apathy and to actively support racial equality. The concurring opinion goes on to catalog racial abuses that have occurred throughout our history and notes how courts on the federal and state level have fallen short in meeting their commitment to administer justice involving racial matters. It even speculates that had plaintiffs’ 42 U.S.C. section 1983 action not been dismissed in federal court because of the running of the statute of limitations, they would have had an uphill battle to obtain redress in those courts. The concurring opinion also highlights the ways in which the qualified immunity doctrine emasculates section1983 actions. The concluding paragraph picks up on the theme of the first paragraph and again acknowledges that a “wrongful death judgment with substantial damages is one way of affirming the worth and dignity” of the decedent. But again cautions that the racial dimensions of the case should not escape the court’s notice. And then cites the court’s June statement of solidarity with a question, “How are we to ensure that ‘the promise of equal justice under law is, for all our people, a living truth’? (Cal. Supreme Ct., Statement on Equality and Inclusion (June 11, 2020) .) Whatever the answer, it must involve acknowledging that [decedent's] death at the hands of law enforcement is not a singular incident unmoored from our racial history. With that acknowledgment must come a serious effort to rethink what racial discrimination is, how it manifests in law enforcement and the justice system, and how the law can provide effective safeguards and redress for our neighbors, friends, and citizens who continue to bear the cruel weight of racism's stubborn legacy.” Despite the passion and strength of the concurring opinion, does it belong here? Yes, the victim was an African American, but the holding applies to any plaintiff in similar or other circumstances involving intentional acts. Footnote 2 answers that question and only two justices signed the concurring opinion. Maybe because of the race and circumstances under which the decedent died, the similarities to the George Floyd murder, the concurring opinion was justified. But would the message of the concurring justices been better expressed in a law review article, and not in an opinion where the decedent happened to be African American? The powerful message of the concurring opinion highlights the inequities that have plagued this country and our institutions. But it can be argued the relevant issues in B.B. are incidental even though Mr. Burley was African American. Justice was accorded his heirs, and the concurring justices acknowledge that. But was this the case to raise historical issues that perhaps might be better voiced elsewhere? Does the court lose its political capital when some members extend the discussion beyond the issue before the court? Does it give appellate practitioners pause concerning their prediction of how some justices might view future cases where litigants are African American? And this in turn may affect perceptions of justice’s objectivity. On the other hand, these views are a legitimate expression of the changing landscape of a systemic national issue that all our governmental political institutions should acknowledge as often as possible. Are they not an expansion of what all members of the court expressed in its June declaration? “On the other hand…” –an introductory phase that has haunted all law school students– is and will always be omnipresent in the legal profession.