The Inverted ‘V’ Problem – After the Outrage Over Police Brutality Against Black Victims, Where Are the Reforms?

Rodney King. Amadou Diallo. Michael Brown. Eric Garner. Breonna Taylor. Over the past 30 years, instances of police use of force against Black people have sparked public outrage and triggered discussions about racial discrimination, justice and police reform. Following each incident, an immediacy to act, to change and to redress was featured prominently in the daily news cycle. Until it wasn’t. Before any true reform, reckoning or rectification could occur, the front page found other issues to report. Support for fledgling initiatives diminished[1] and hope for equity faded.[2] America suffers from an inverted “V” problem – we are propelled to react in the heat of the moment, igniting conversation and spiking interest in justice, only to see the fervor drop off precipitously a few months after each event.

That’s what happened in the Rodney King case. After the nation watched his savage beating on television, the exoneration of the officers involved and the burning of Los Angeles, the Department of Justice finally took action, filing charges against the officers for violating King’s civil rights[3] and negotiating a consent decree^[4] with the Los Angeles Police Department that addressed issues of excessive force, racial bias and police misconduct. There were changes in police training, use-of-force policies and use of video evidence in documenting police interactions.

And then what? All too soon the nation learned of another outrage, another victim of police overreaction. In 1999, Amadou Diallo,[5] an unarmed West African immigrant, was shot and killed by four New York City police officers, who mistakenly thought Diallo was reaching for a weapon. This incident again sparked widespread protest with activists calling for the end of racial profiling and the use of excessive force. But once again, all the officers were tried and acquitted of all charges,[6] fueling public outrage and frustration. The Department of Justice again stepped in to levy federal charges, but no officer was convicted. The Diallo killing did draw attention to the need for criminal justice reform, police accountability, racial profiling and excessive use of force, but his tragic death did not sustain long-term reform.

The list of outrages continued to grow: Sean Bell[7] fatally shot by New York City police officers on the morning of his wedding day; Oscar Grant[8] fatally shot by a Bay Area Rapid Transit police officer in Oakland, California, while he was lying face down on a train platform; Michael Brown,[9] an unarmed Black teenager, shot and killed by a police officer in Ferguson, Missouri; Eric Garner,[10] dead from a chokehold by a New York City police officer during an arrest for selling loose cigarettes. Garner’s dying words, “I can’t breathe,”[11] became a national mantra during protests against police brutality. A year later, Freddie Gray[12] died in Baltimore, Maryland, while in police custody. A year after that, Philando Castile[13] was shot and killed by a police officer during a traffic stop in Falcon Heights, Minnesota. In 2020, during the execution of a “no-knock” search warrant, Breonna Taylor,[14] a Black woman, was fatally shot by police in her apartment in Louisville, Kentucky. None of the officers involved in the Garner,[15] Gray,[16] Castile[17] or Taylor[18] incidents were held criminally liable for their actions. Once again, these tragedies prompted conversations about police accountability, racial policing and the use of deadly force. But systemic issues of racism, bias, inequity and injustice could not hold national attention longer than the press coverage following each tragic event.

And then there was George Floyd.[19] Occurring during the height of the COVID-19 pandemic, George Floyd was murdered by Minneapolis police officer Derek Chauvin, who knelt on Floyd’s neck for over nine minutes during an arrest, which was captured on video.[20] Despite a global health emergency, people took to the streets in protest in cities around the globe.[21] We were captivated in our homes daily by the visceral outcry for equity[22] and the pleas for humanity reported in the news.[23]

CEOs[24] of Fortune 500 companies denounced the violence against Black Americans and signed declarations in support of diversity, equity and inclusion. Financial service juggernauts[25] established multimillion-dollar funds dedicated to supporting Black-owned businesses. Organizations arranged their investment strategies to be inclusive of environmental, social and governance issues,[26] which involved a DEI lens. States considered proposals that might remodel their law enforcement practices.[27] Companies deployed DEI-related training and created “safe” spaces[28] for their colleagues to engage in open dialogue. “How to Be an Antiracist”[29] by Ibram X. Kendi sold nearly 2 million copies. We had reached the top of the inverted “V.”

Now, companies that bravely issued DEI statements face litigation[30] and public scrutiny.[31] Institutions that hired DEI executives are letting them go.[32] State attorneys general are proposing regulations against ESG considerations in investing.[33] Most attempts at police reform have been roundly rejected.[34] The news cycle has moved on to the next hot topic. The precipitous slide down the other side of the “V” has begun.

But should it? Can the legal profession help effect sustainability in the social justice movement? Lawyers are uniquely suited to this task because they are trained advocates for justice and can influence the legal system. Specifically, lawyers can engage in impact litigation, advance criminal justice reform, encourage efforts to increase diversity in judicial appointments, engage and defend impacted communities, promote legislation aimed at addressing systemic racism and incorporate diversity and inclusion in legal education.

Impact litigation challenges discriminatory laws, policies and practices. By bringing high-profile cases on systemic issues to court, attorneys can spearhead legal precedents that promote racial equity. For example, in a 2021 complaint[35] filed by the New York City Legal Aid Society, attorneys challenged the New York Police Department’s practice of arresting people for lower-level offenses that, under state law, are non-arrestable offenses subject only to the issuance of an appearance ticket. In Davis v. City of New York,[36] the Legal Aid Society successfully ended a longstanding practice of unconstitutional stops, searches and false arrests of New York City public housing residents and their guests.

Regarding criminal justice reform, attorneys recognize that many people, particularly those of color, who have not been convicted of crimes remain in jail because they cannot afford bail. Further, their trials are often delayed while they remain behind bars. Lawyers with the New York Civil Liberties Union advocate against these practices by promoting bail reform,[37] proposing legislation aimed at curtailing inequities[38] and addressing police reform.[39]

In 2020, a presiding justice of the New York Appellate Division, First Department, examined the current state of diversity[40] among the state’s judiciary. Justice Acosta noted that “diversity on the bench lends credibility to a justice system that underrepresented groups, such as women and people of color, have historically viewed with suspicion and distrust.”[41] Lawyers, as well as judges and legal scholars, should continue to advance judicial diversity and promote educational opportunities to increase judicial awareness about implicit bias to ensure fairness and impartiality in the justice system.

Lawyers are also particularly adept at defending impacted communities. Whether acting pro bono or through a legal aid group, lawyers can build trust and partnerships with affected communities by providing representation and addressing issues of police misconduct, racial profiling, housing discrimination and unequal access to education.

The Civil Rights Act of 1964 represented sweeping legislation that banned labor discrimination based on race, color, religion, sex or national origin, and ended segregation. Following the passage of this law, the U.S. signed the International Convention on the Elimination of All Forms of Racial Discrimination. Although more than 50 years have passed since signing the international convention, the U.S. struggles with reparative justice, discrimination in the criminal legal system, use of force by law enforcement officials, discrimination in the regulation and enforcement of migration control and stark disparities in economic opportunity and healthcare. As recommended by Human Rights Watch, lawyers should continue to support legislation that addresses these issues, including the Commission to Study and Develop Reparation Proposals for African Americans Act[42] and federal legislation aimed at standards for teaching Black history and racial discrimination in schools.[43]

Lastly, our law school curriculum should incorporate discussions of racial justice, critical race theory, and diversity, equity and inclusion. We recognize that DEI is critical to the legal profession, our judicial system and the rule of law. In fact, in 2022, the American Bar Association[44] stated that it will require law schools to educate students about bias, racism and cross-cultural competency. While there are those who see a detriment to DEI training[45] for law students, legal administrators[46] continue to embrace such training that they believe fosters an environment and culture of inclusion and equality and nurtures and strengthens a sense of community and belonging for faculty, staff and students.

The precarious slide down the other side of the “V” is not inevitable. Our society has equipped lawyers to drive sustainability in social justice initiatives and to advocate for equity and fairness. We should not wait for history to tragically repeat itself. Through our legal profession, we can reform, defend, influence and educate to achieve enduring social change now.

Vivian D. Wesson serves as executive vice president, corporate secretary and general counsel to the Board of Pensions of the Presbyterian Church based in Philadelphia. Wesson also chairs the New York State Bar Association’s Task Force on Artificial Intelligence.

[1] Olivia B. Waxman, 30 Years After the Rodney King Verdict, Why Advocates Believe ‘Reforms Didn’t Go Far Enough,’ Time, April 28, 2022, https://time.com/6169564/rodney-king-riots-beating-anniversary.

[2] Americans’ Recognition of Racism’s Impact Is Fading, Buffalo Healthy Living, May 27, 2022, https://buffalohealthyliving.com/americans-recognition-of-racisms-impact-is-fading.

[3] LAPD Officers Beat Rodney King on Camera, History.com, March 2, 2021 (updated), https://www.history.com/this-day-in-history/police-brutality-caught-on-video.

[4] LAPD/DOJ Consent Decree Overview, Los Angeles Police Department, June 29, 2001, https://www.lapdonline.org/newsroom/lapddoj-consent-decree-overview-5028.

[5] History.com Editors, Amadou Diallo Killed by Police, History.com, Jan. 24, 2022, https://www.history.com/this-day-in-history/amadou-diallo-killed-by-police-new-york-city.

[6] Jane Fritsch, The Diallo Verdict: The Overview; 4 Officers in Diallo Shooting Are Acquitted of All Charges, N.Y. Times, Feb. 26, 2000, https://www.nytimes.com/2000/02/26/nyregion/diallo-verdict-overview-4-officers-diallo-shooting-are-acquitted-all-charges.html.

[7] Alison Gendar et al., Sean Bell Is Killed After Cops Blasted 50 Bullets in 2006, N.Y. Daily News, Nov. 24, 2015, https://www.nydailynews.com/2015/11/24/sean-bell-is-killed-after-cops-blasted-50-bullets-in-2006.

[8] Timeline of BART Shooting Incident, San Francisco Examiner, July 8, 2010, https://www.sfexaminer.com/news/timeline-of-bart-shooting-incident/article_f3e9c690-f013-5309-9dfc-148396e95f83.html.

[9] Michael Brown Is Killed by a Police Officer in Ferguson, Missouri, History.com, May 26, 2021 (updated), https://www.history.com/this-day-in-history/michael-brown-killed-by-police-ferguson-mo.

[10] Eric Garner Dies in NYPD Chokehold, History.com, July 15, 2020, https://www.history.com/this-day-in-history/eric-garner-dies-nypd-chokehold.

[11] ‘I Can’t Breathe’: The Refrain That Reignited a Movement, Amnesty International, June 30, 2020, https://www.amnesty.org/en/latest/news/2020/06/i-cant-breathe-refrain-reignited-movement.

[12] Amelia McDonell-Parry and Justine Barron, Death of Freddie Gray: 5 Things You Didn’t Know, Rolling Stone, Apr. 12, 2017, https://www.rollingstone.com/culture/culture-features/death-of-freddie-gray-5-things-you-didnt-know-129327.

[13] Jay Croft, Philando Castile Shooting: Dashcam Video Shows Rapid Event, CNN, June 21, 2017, https://www.cnn.com/2017/06/20/us/philando-castile-shooting-dashcam/index.html.

[14] Theresa Waldrop et al., Breonna Taylor Killing: A Timeline of the Police Raid and Its Aftermath, CNN, Aug. 4, 2022, https://www.cnn.com/2022/08/04/us/no-knock-raid-breonna-taylor-timeline/index.html.

[15] Katie Benner, Eric Garner’s Death Will Not Lead to Federal Charges for N.Y.P.D. Officer, N.Y. Times, July 16, 2019, https://www.nytimes.com/2019/07/16/nyregion/eric-garner-daniel-pantaleo.html.

[16] Federal Officials Decline Prosecution in the Death of Freddie Gray, U.S. Department of Justice, Office of Public Affairs, Sept. 12, 2017, https://www.justice.gov/opa/pr/federal-officials-decline-prosecution-death-freddie-gray.

[17] Police Officer Who Shot Dead Philando Castile Acquitted of All Charges, The Guardian, June 16, 2017, https://www.theguardian.com/us-news/2017/jun/16/philando-castile-death-police-officer-not-guilty.

[18] Matthew Guariglia, The Most Revealing Moment From Former Louisville Officer Brett Hankison’s Trial, NBC News, Mar. 7, 2022, https://www.nbcnews.com/think/opinion/police-breonna-taylor-death-acquitted-telling-verdicts-ncna1291105.

[19] Evan Hill et al., How George Floyd Was Killed in Police Custody, N.Y. Times (published May 31, 2020, updated Jan. 24, 2022), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html.

[20] Eliott C. McLaughlin, Three Videos Piece Together the Final Moments of George Floyd’s Life, CNN, June 23, 2020, https://www.cnn.com/2020/06/01/us/george-floyd-three-videos-minneapolis/index.html.

[21] Protests Across the Globe After George Floyd’s Death, CNN, June 13, 2020, https://www.cnn.com/2020/06/06/world/gallery/intl-george-floyd-protests/index.html.

[22] Jason Silverstein, The Global Impact of George Floyd: How Black Lives Matter Protests Shaped Movements Around the World, CBS News, June 4, 2021, https://www.cbsnews.com/news/george-floyd-black-lives-matter-impact.

[23] Javier C. Hernández and Benjamin Mueller, Global Anger Grows Over George Floyd Death, and Becomes an Anti-Trump Cudgel, N.Y. Times, Sept. 7, 2021 (updated), https://www.nytimes.com/2020/06/01/world/asia/george-floyd-protest-global.html.

[24] Kevin Stankiewicz, CEOs Are Offering Plans and Investments To Address Racial Inequality After George Floyd Death, CNBC, June 11, 2020, https://www.cnbc.com/2020/06/11/ceos-unveil-plans-against-racial-inequality-after-george-floyd-death.html.

[25] Shaun Harper, Where Is The $200 Billion Companies Promised After George Floyd’s Murder?, Forbes, Oct. 17, 2022, https://www.forbes.com/sites/shaunharper/2022/10/17/where-is-the-200-billion-companies-promised-after-george-floyds-murder.

[26] Lizzy Gurdus, How Companies Interact With Their Communities Is Noted in ESG Scoring, Index Manager Says, CNBC, June 2, 2020, https://www.cnbc.com/2020/06/02/how-george-floyd-protests-are-informing-esg-investing-sp-dow-jones.html.

[27] Colleen Slavin, States Diverge on Police Reforms After George Floyd Killing, PBS, Dec. 30, 2021, https://www.pbs.org/newshour/nation/states-diverge-on-police-reforms-after-george-floyd-killing.

[28] How 3Mers Created a Safe Space for Honest Discussions About Race at Work, 3M News Center, Oct. 8, 2021, https://news.3m.com/How-3Mers-created-a-safe-space-for-honest-discussions-about-race-at-work.

[29] Elizabeth A. Harris, In Backlash to Racial Reckoning, Conservative Publishers See Gold, N.Y. Times (Aug. 15, 2021), https://www.nytimes.com/2021/08/15/books/race-antiracism-publishing.html.

[30] Lara A. Flath et al, Corporate DEI Policies Face Scrutiny Following SCOTUS Affirmative Action Decision, Skadden, Sept. 2023, https://www.skadden.com/insights/publications/2023/09/quarterly-insights/corporate-dei-polices-face-scrutiny.

[31] Victor Ray and Tsedale M. Melaku, Countering the Corporate Diversity Backlash, MIT Sloan Management Review, Aug. 9, 2023, https://sloanreview.mit.edu/article/countering-the-corporate-diversity-backlash.

[32] Kiara Alfonseca and Max Zahn, How Corporate America Is Slashing DEI Workers Amid Backlash to Diversity Programs, ABC News, July 7, 2023, https://abcnews.go.com/US/corporate-america-slashing-dei-workers-amid-backlash-diversity/story?id=100477952.

[33] Ross Kerber, US Republicans Challenge More Fund Managers on ESG, Reuters, Mar. 31, 2023, https://www.reuters.com/business/sustainable-business/us-republicans-widen-challenge-fund-managers-esg-2023-03-31.

[34] Peter Nickeas and Emma Tucker, Voters and Public Officials Choose Police Reform in Moderation After George Floyd’s Murder, CNN, Nov. 7, 2021, https://www.cnn.com/2021/11/07/us/police-reform-moderation/index.html.

[35] Charles Douglas et. al vs. The City of New York et al, complaint filed Apr. 14, 2021, NYSCEF Doc. No. 2, https://legalaidnyc.org/wp-content/uploads/2021/07/FILED-Charles_Douglas_et_al_v_Charles_Douglas_et_al_COMPLAINT_2.pdf.

[36] 902 F. Supp. 2d 405 (S.D.N.Y. 2012).

[37] The Facts on Bail Reform, New York Civil Liberties Union, https://www.nyclu.org/en/campaigns/facts-bail-reform.

[38] Legislative Memo: Promoting Pre-Trial Stability Act, New York Civil Liberties Union, https://www.nyclu.org/en/legislation/legislative-memo-promoting-pre-trial-stability-act.

[39] Legislative Memo: Police Use of No-Knock Warrants, New York Civil Liberties Union, https://www.nyclu.org/en/legislation/legislative-memo-police-use-no-knock-warrants.

[40] Rolando T. Acosta, The State of Diversity in New York’s Judiciary, NYSBA Bar Journal, May 12, 2020, https://staging-api.nysba.org/the-state-of-diversity-in-new-yorks-judiciary.

[41] Id.

[42] H. R. 40, 117th Congress (2021–2022).

[43] Natalie Colarossi, The U.S. Still Does a Wretched Job of Teaching Black History. An Expert in African American History Education Explains How To Fix It, Business Insider, June 27, 2020, https://www.insider.com/how-to-improve-how-black-history-is-taught-in-schools-2020-6.

[44] Karen Sloan, U.S. Law Students To Receive Anti-Bias Training After ABA Passes New Rule, Reuters, Feb. 14, 2022, https://www.reuters.com/legal/legalindustry/us-law-students-receive-anti-bias-training-after-aba-passes-new-rule-2022-02-14.

[45] Tunku Varadarajan, DEI at Law Schools Could Bring Down America, Wall St. J., Mar. 28, 2023, https://www.wsj.com/articles/woke-law-schools-could-bring-down-america-ilya-shapiro-dei-bureaucracy-stanford-supreme-court-rule-of-law-34c402c2.

[46] American Bar Association Webinar: Diversity, Equity & Inclusion in Action: A Conversation With DEI Law School Leaders (recorded Nov. 15, 2021), https://www.americanbar.org/groups/diversity/resources/dei-webinar-a-conversation-with-dei-law-school-leaders.