Banning Plastic Bags Under the New York “Home Rule”

By Kelly O’Connor

New York City residents use an estimated ten billion plastic shopping bags annually, resulting in 1,700 tons of residential garbage per week.[i]  Despite the fact that city government has long recognized the great environmental and financial costs of single-use plastic bags, local proposals to reduce the number of carryout bags in the territory have been met with vehement resistance for over a decade.[ii]

In 2016, the New York City Council narrowly passed a bill that would impose a five-cent fee on plastic and paper carryout bags from grocery, convenience, and retail stores, designed to incentivize consumers to bring their own reusable shopping bags and thus reduce waste and bag pollution across the city.[iii]  However, state legislators moved quickly to prohibit implementation of the local measure.[iv]  The day before the bag fee was to go into effect, Governor Cuomo signed a bill preempting the City Council’s enactment by placing a moratorium on local laws that impose a tax or fee on single-use bags by cities of one million or more.[v]  Invoking the “substantial state concern” doctrine[vi] and state preemptive power, the state government removed the bag-related environmental issue from the hands of the city government, vowing to fashion its own solution.[vii]

Like the federal Constitution, the New York State Constitution represents the will of its people.  In Article IX of the state Constitution, the citizens of New York assert their right to reallocate power for “effective local self-government and intergovernmental cooperation.”[viii]  In furtherance of this aim, the Article provides for the liberal construction[ix] of local governments’ “rights, powers, privileges and immunities,”[x] among them, legislative authority over local affairs.[xi]  Though the state retains much of its legislative powers, the Constitution clearly provides for municipal self-governance and freedom from state intrusion with regard to local matters.[xii]

Article IX, Section 2 both affords local governments the power to adopt laws relating to its own “property, affairs or government,”[xiii] so long as they are not inconsistent with the Constitution or general state law, and affirmatively limits the ability of the state to legislate with respect to these areas except by general law or by special law in accordance with specified procedures and local solicitation.[xiv]

A “general law,” by which the state may freely act with regard to local property, affairs, and government, is one that “in [its]terms and in [its]effect” applies to all New York localities alike.[xv]  A “special law” is a law that applies to one or more but not all localities in the state,[xvi] which may be enacted only at the request of the locality (commonly termed a “Home Rule message”) [xvii] or, except in the case of New York City, with a gubernatorial certificate of necessity.[xviii]

The state government may circumvent the Constitution’s safeguards against special legislation and impose its will on a particular locality if the subject matter of the law implicates a “substantial state concern.”[xix]  Where the state government asserts a substantial state interest in connection with an enactment that applies to fewer than all municipal corporations of the state, New York courts employ the highly deferential reasonable relationship standard of review and frequently uphold legislation that appears to regulate a local matter notwithstanding the absence of a Home Rule message.[xx]  If there exists a reasonable nexus between the State’s statute and the interest identified by the Legislature, the law will likely meet the low threshold of constitutionality and supersede local authority over the matter.  The substantial state concern doctrine dramatically dilutes the Home Rule power of New York City particularly, as almost all seemingly local matters could have spillover effects statewide, given its position at the core of New York’s population and economy.[xxi]

Constitutional prohibitions and procedural constraints on special legislation promote laws that aim to serve common statewide interests, ensure fairness and equal treatment, and discourage legislation that confers benefits or imposes burdens on only select individuals.[xxii]  Special laws may be appropriate, however, when the unique circumstances or concerns of a class of localities necessitate legislation that would be improvident if applied to smaller, less populated, or otherwise materially different localities.[xxiii]  When an act of the Legislature does not apply uniformly throughout the state, but rather targets a class of municipalities sharing a specified characteristic, such as minimum population, it may be upheld if the stipulated common criterion is “reasonably related to the subject of the statute.”[xxiv]  Even an act, which by its specified conditions could encompass only one municipality at the time of its passage, may be found constitutional if there exists “a reasonable prospect that more than one member will constitute the class in the foreseeable future.”[xxv]  Though the prohibition on special laws in the absence of a Home Rule message imposes a procedural check on the State’s ability to interfere with the affairs of a municipality, the lenient reasonable relationship inquiry and “open class” principle have reduced the force of the provision by allowing state legislation that plainly targets the affairs of one locality to stand.[xxvi]

The scope of Home Rule in New York is additionally limited by the principle of state preemption.[xxvii]  Stemming from Article IX’s provision that local enactments may not be inconsistent with the general laws or Constitution of the state,[xxviii] the doctrine displaces otherwise valid local acts that are found to conflict with state law, address statutorily-prohibited subject matter, or enter a field of regulation already dominated by comprehensive state legislation.[xxix]  Despite the Constitution’s grant of relatively broad Home Rule power,[xxx] New York localities are frequently constrained in their exercise of autonomy by the existence of preemptive state statutes or state occupation of a regulatory field.

Though the state-local power struggle regarding the regulation of single-use shopping bags was ultimately resolved through state legislation, which will take effect this March,[xxxi] the conflict illustrated the indistinct limits of New York Home Rule, blurred by the doctrine of substantial state concern and preemption.

The New York City Council, a local lawmaking body elected by the people of the city as required by the state Constitution,[xxxii] enacted Local Law No. 63 to “reduc[e]the use of single-use carryout bags in the city,” with the ultimate aim of decreasing waste and litter in the streets and waterways, and reducing “contamination of the residential recycling stream” and “flooding or sewer overflows.”[xxxiii]  In a 2016 Committee Report, Council members in support of the amendment to the administrative code identified a host of problems relating to the City’s “property” and “affairs” caused by single-use shopping bags—among them, environmental damage and pervasive litter within the city’s borders, high waste management costs borne by city residents, and exacerbated risks of flooding in the city’s low-lying neighborhoods.[xxxiv]

Expressly preempting the Council’s bill, the State established a moratorium on the implementation of any local law “by a city with a population of one million or more, related to charging a fee for carryout bags.”[xxxv]  Though the state law does not target any one locality by name, it is, “in effect,”[xxxvi] solely applicable to New York City, the only municipal corporation in the state meeting the population condition.[xxxvii]  Because the State’s measure was enacted in the absence of a Home Rule message, relates to the property and affairs of New York City,[xxxviii] and has such exclusive effect, Article IX’s protections against special legislation are implicated.

Under New York constitutional law, even where state legislation relates directly to the affairs of a particular locality, it may be deemed a “general law” if the matter to be regulated is “of sufficient importance to the state generally.”[xxxix]  After signing the state bill, Governor Cuomo asserted in a statement that the environmental problems caused by single-use bags are not a local issue, but rather a statewide challenge requiring a statewide solution.[xl]  Recognizing the need for legislative action to address the matter but taking issue with some of the particulars of the City Council’s law,[xli] the Governor seemed to proffer regulatory uniformity with regard to single-use plastic bags as the justification for displacing the local action.[xlii]  Though state interest in a unified regulatory regime has been upheld as a valid “substantial state interest,”[xliii] the statute at issue must bear a reasonable relationship to the achievement of that goal.[xliv]

The State’s enactment, rather than instituting a universal policy to address the environmental issue, simply eliminates the city’s bag fee measure and fails to introduce an alternative solution to take its place, an outcome that directly conflicts with the stated reason for overriding local authority.[xlv]  Although the State pledged to establish a “task force” to address the matter and propose statewide legislation in the future,[xlvi] the invalidation of the City’s law that would have operated in the interim does not reasonably relate to uniform regulation of the issue, especially as similar bag fee laws of other New York localities remained in effect.[xlvii]  Even with the benefit of the vast legislative deference granted under the reasonable relationship standard, the State’s deregulatory statute can scarcely be seen to advance the asserted aim of statewide regulation, as it leaves the single-use bag issue that plagued New York City completely unchanged.

Even if a sufficiently reasonable relationship between the asserted state concern and statutory terms could be found, the State must still establish a “reasonable ground” for designing a law that is not general in its effect.[xlviii]  The New York Court of Appeals has long held that legislation that does not apply to all of the state’s localities alike may still be deemed “general,” and thus passable in the absence of a Home Rule message, if it creates a justifiable class.[xlix]  Though the population condition to the State’s single-use bag law encompasses only New York City, it facially creates an open “class” within the meaning of state law, as other municipalities may at some point in the future reach the threshold and become subject to the law.[l]  However, the population criterion is a valid limit to the law’s applicability only if the characteristic is reasonably related to the subject matter of the legislation. That at the time of the State’s enactment other New York areas had bag fee laws in place akin to the one at issue, which were unscathed by the State’s action, suggests that the statute’s population distinction serves merely as an “identifying mark of the locality […] for which the Legislature is enacting a special law.”[lii]  Where the asserted substantial state interest is consistent regulation of single-use bags through a singular statewide regime, but the preemptive law permits all but one existing local law on the matter to endure, there appears to be no reasonable ground for classification.

Although the principle of preemption and judicially-developed doctrines described above have narrowed the scope of Home Rule in New York, the State’s deregulatory measure, if challenged, would likely not have withstood constitutional review, as it demonstrably failed to advance the identified substantial state concern and its applicability turned on a pretextual classification not reasonably related to its aim.

[i] See Laura Parker, New York State to Ban Plastic Bags—Here’s Why, National Geographic (March 29, 2019), www.nationalgeographic.com/environment/2019/03/new-york-state-plastic-bag-ban-explained/.

[ii] See J. David Goodman, 5¢ Fee on Plastic Bags Is Approved by New York City Council, N.Y. Times  (May 5, 2016), www.nytimes.com/2016/05/06/nyregion/new-york-city-council-backs-5-cent-fee-on-plastic-bags.html?module=inline (detailing Mayor Bloomberg’s 2008 efforts to remedy the problems posed by plastic bags); Matt Flegenheimer, New York City Council Hearing on Fee for Bags Becomes Heated, N.Y. Times  (November 19, 2014), www.nytimes.com/2014/11/20/nyregion/new-york-city-council-hearing-on-fee-for-bags-becomes-heated.html?module=inline.

[iii] 2016 N.Y.C. Local Law No. 63 – A local law to amend Title 16 of the administrative code of the city of New York through the addition of chapter 4-F to reduce the use of carryout bags through imposition of a fee on consumers. legistar.council.nyc.gov/View.ashx?M=F&ID=4559943&GUID=A7063A49-6759-4EA8-B640-93364AB175E6.

[iv] See Vivian Yee, New York City’s Plastic Bag Fee Is Delayed Amid Scrutiny in Albany, N.Y. Times  (June 7, 2016), www.nytimes.com/2016/06/08/nyregion/new-york-citys-plastic-bag-fee-is-delayed-amid-scrutiny-in-albany.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer.

[v] S. 4158, 2017-2018, Reg. Sess. (N.Y. 2017) www.nysenate.gov/legislation/bills/2017/s4158. See also Samar Khurshid, After Superseding City Cuomo’s Plastic Bag Panel Punts, Gotham Gazette (January 20, 2017),  www.gothamgazette.com/?id=7424:after-superseding-city-cuomo-s-plastic-bag-panel-punts; Jesse McKinley, Cuomo Blocks New York City Plastic Bag Law, N.Y. Times  (February 14, 2017), www.nytimes.com/2017/02/14/nyregion/cuomo-blocks-new-york-city-plastic-bag-law.html?module=inline.

[vi] Then Chief Judge Cardozo first articulated the controlling substantial state concern doctrine in Alder v. Deegan: “[I]f the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality […] if the affair is partly State and partly local, the city is free to act until the State has intervened.” 167 N.E. 705, 714 (N.Y. 1929) (Cardozo, J., concurring).

[vii] See Justification of S. 4158, 2017-2018, Reg. Sess., www.nysenate.gov/legislation/bills/2017/s4158. “A more thorough examination […] is needed in order to investigate all potential impacts and possible alternative approaches and to allow for public input. Such a review shall afford the state and its residents the opportunity to analyze the most effective methods of decreasing the use of and increasing recycling of single use paper and plastic carryout bags to effectively manage the waste stream and assist in environmental protection and management.” (emphasis added).

[viii] N.Y. Const. art. IX, § 1.

[ix] Id. art. IX § 3(c).

[x] Id. art. IX, § 1.

[xi] Id. art. IX, § 1(a).

[xii] See Jeffrey M. Stonecash, New York, in Home Rule in America: A Fifty-State Handbook, 303, (Dale Krane, Platon N. Rigos & Melvin B. Hill Jr. eds., 2001).

[xiii] N.Y. Const. art. IX, § 2(c).

[xiv] Id. art. IX, § 2(b)(2).

[xv] Id. art. IX, § 3(d)(1).

[xvi] Id. art. IX, § 3(d)(4).

[xvii] Id. art. IX, § 2(b)(2)(a).

[xviii] See James D. Cole, Constitutional Home Rule in New York: “The Ghost of Home Rule,” 59 St. John’s L. Rev. 713, 725 (1985), note 40.

[xix] See Adler, supra note 6.

[xx] See Michael A. Cardozo, Home Rule in New York: The Need for Change, 38 Pace L. Rev. 90, 91 (2017).

[xxi] See Adler, supra note 6 at 713. In his first articulation of the substantial state concern doctrine, Cardozo pointed to relatively unsubstantial examples from the “wide field” of purely local interests, the power over which the City government would retain, including the laying out of parks, building of recreation areas, and organizing of public concerts.  The opinion makes clear that the zone of matters implicating both state and local concerns, wherein State legislation would prevail, is vast.

[xxii] See Richard Briffault & Laurie Reynolds, Cases and Materials on State and Local Government Law, 299­–301 (West Academic Publishing 8th ed. 2016).

[xxiii] Id.

[xxiv] Farrington v. Pinckney, 133 N.E.2d 817, 822 (N.Y. 1956) (sustaining a special law applicable to counties of one hundred thousand or more).

[xxv] Hotel Dorset Co. v. Trust for Cultural Res. of N.Y., 63 A.D.2d 157, 166, (N.Y. Sup. Ct. App. Div. 1st Dep’t 1978) (finding that a law applicable only to the Museum of Modern Art is constitutional general legislation because other cultural institutions may join the class in the future).

[xxvi] See Cardozo, supra note 20 at 114.

[xxvii] See Albany Area Builders Assn. v. Town of Guilderland, 546 N.E.2d 920, 922 (1989) (finding that a local land use regulation was preempted by a comprehensive scheme of general state laws regulating the funding of roadway improvements).

[xxviii] N.Y. Const. art. IX, § 2(c).

[xxix] See Cardozo, supra note 20 at 101, 115.

[xxx] See generally Stonecash, supra note 12.

[xxxi] Enacted as part of the 2019–2020 budget, Article 27 of the State’s Environmental Conservation Law has been amended to include a prohibition on the distribution of single-use plastic bags.  The law further authorizes local governments to impose a five cent fee on carryout paper bags provided by retailers. www.nysac.org/files/Plastic%20Bags%20Webinar%20Presentation1.pdf.

[xxxii] N.Y. Const. art. IX, § 1(a) provides that “[e]very local government, except a county wholly included within a city, shall have a legislative body elective by the people thereof.”

[xxxiii] 2016 N.Y.C. Local Law No. 63 § 16-494 (detailing the reporting requirements under the City law with reference to the overarching purposes of the enactment).

[xxxiv] The Committee on Sanitation and Solid Waste Management found that single-use carryout bags heighten the risk of flooding in parts of the City, pose grave threats to marine life in the surrounding waters, and cost the city approximately $10 million per year in waste management expenditures.  See Committee Report (May 4, 2016) legistar.council.nyc.gov/view.ashx?m=f&id=4424512&guid=7e4cf794-eb2d-4011-8f5e-a4d88fa6f338.

[xxxv] S. 4158, 2017-2018, Reg. Sess., supra note 5.

[xxxvi] See N.Y. Const. art. IX, § 3(d)(1).

[xxxvii] See Samar Khurshid, Early in Albany Session, Plastic Bag Fee Sparks Home Rule Debate, Gotham Gazette (January 20, 2017), www.gothamgazette.com/state/6722-early-in-albany-session-plastic-bag-fee-sparks-home-rule-debate.

[xxxviii] In Adler, supra note 6 at 707, the majority emphasized that the terms “property, affairs, or government” as protected under Article IX must be given “limited meaning.”  The court held that the health and welfare of New York City residents affected the health and welfare of the state as a whole, and thus implicated statewide, not merely local, affairs.

[xxxix] See Hotel Dorset Co., supra note 25 at 373, “[i]f the subject matter of the legislation is of sufficient importance to the State generally, the legislation cannot be deemed a local law even though it deals directly with the affairs of a municipality.” See also Adler, supra note 12.

[xl] See Statement from Governor Andrew M. Cuomo (February 14, 2017), www.governor.ny.gov/news/statement-governor-andrew-m-cuomo-126.

[xli] In statements to the press, Governor Cuomo and state lawmakers criticized the local measure on a number of grounds.  First, the local law directed the profits that would be generated from bag fees to the merchants that provided them, instead of earmarking the funds to serve a government purpose. The Council could not have enacted a law with such a provision, however, because the fee would be deemed a tax, which local governments may not levy without approval from the State. See N.Y. Const. art. XVI, § 1. See also Cardozo, supra note 20 at n.30.  State actors also professed concern that the fee would operate as a regressive tax on the poor, though the City’s enactment contained numerous exemptions to remedy this potentiality. See Statement from Gov. Cuomo, supra note 40; see also Khurshid, supra note 37.

[xlii] See Statement from Gov. Cuomo, supra note 40.

[xliii] See Albany Bldrs. v. Guilderland, 74 N.Y.2d 372, 377 (N.Y. 1989) (explaining that “the need for State-wide uniformity in a given area” qualifies as a substantial state interest justifying the displacement of a locality’s Home Rule interest).

[xliv] See New York City v. Patrolmen’s Assn, 89 N.Y.2d 380, 392 (N.Y. 1996) (where “the act does not and cannot accomplish the most clearly expressed legislative objective, of achieving State-wide uniformity […] because all other jurisdictions but the City retain the right,” the legislation unconstitutionally targets one locality and the stated interest is thus invalid).

[xlv] See generally Richard Briffault, Nestor M. Davidson, & Laurie Reynolds, The New Preemption Reader: Legislation, Cases, and Commentary on the Leading Challenge in Today’s State and Local Government Law, 11–18 (2019) (discussing the prevalence of sweeping state preemptive measures designed exclusively to block local regulations without replacing them in order to leave a field completely unregulated.).

[xlvi] See Statement from Gov. Cuomo, supra note 40.

[xlvii] Because Suffolk County was not brought within the purview of the State’s legislation due to its population size, the locality’s ordinance imposing a five cent fee on paper and plastic bags escaped preemption. See patch.com/new-york/huntington/suffolk-county-approves-5-cent-fee-paper-plastic-bags.

[xlviii] See Farrington, supra note 24.

[xlix] See, e.g., id.; Matter of Henneberger, 155 N.Y. 420 (N.Y. 1898).

[l] See, e.g., In the Matter of the Application of Church 92 N.Y. 1 (N.Y. 1883); People v. Dunn, 157 N.Y. 528 (N.Y. 1899); Farrington, supra note 24

[lii] See Henneberger, supra note 49.

New York City’s Ranked-Choice: Can NYC Bypass Albany and Unilaterally Change Its Voting System?

By Sacha Urbach

For progressives living in New York, the 2018 primaries felt like a long overdue bright spot during a time of uncertainty and unrest.  Letitia James became the first African-American woman to receive the Democratic nomination for New York State Attorney General, a position that Eric Schneiderman relinquished after revelations of a pattern of sexual violence.  Alexandria Ocasio-Cortez shocked the political world when she defeated incumbent Joe Crowley and pulled off the biggest upset of the 2018 primaries.  Of course, underlying all of this was the importance of this year’s primaries as the first step in a larger effort by Democrats to retake the House and rebuke President Donald Trump’s agenda.

Perhaps lost in all of this excitement, one aspect of this year’s primaries received far less coverage.  In Lowell, Massachusetts, the state’s fifth most populous city, Lori Trahan won the democratic primary for the district’s congressional seat after Niki Tsongas, the ten year incumbent, announced her retirement.  Ms. Trahan secured just 21% of the total vote in a crowded field of 10 democratic contenders, a far cry from a majority.  This, according to some, is just one example of a fundamental flaw in the predominant voting scheme used by the vast majority of cities and states in the United States.  Under winner-take-all electoral formats, a candidate only needs to secure a plurality of votes rather than a majority.  This has led to candidates winning and retaining seats in congress, governorships, and other important elected positions by securing a very low percentage of votes—far less than a majority.

The solution, according to groups like FairVote, is ranked choice voting (RCV).  RCV requires voters to rank candidates in order of preference, rather than picking only one candidate like they do in traditional winner-take-all systems.  If no candidate wins a majority of first-place votes in the initial round of vote-tallying, the last place candidate is eliminated, and the votes are redistributed.  This process continues until a candidate emerges with a majority of first place votes.  Proponents of RCV have hailed it as the solution to the issue of unpopular candidates winning by a plurality and as a purer form of democracy that better captures the preferences of voters.  Critics have argued that even under RCV, there can still be a plurality winner and that the added administrative expense required to educate voters and count ballots is not worth the purported benefits.

Maine became the first state to implement RCV this year, after calls for reforming the electoral system were spurred by the election and re-election of a deeply unpopular governor.  Several cities have implemented RCV as well.  San Francisco, for example, has used RCV in races for various city positions, including mayor, since 2004.  In New York City, there have been several calls to implement RCV in city elections.  While convincing voters that this is the wisest policy choice will be one challenge, RCV advocates in New York City also face an additional challenge.  It’s unclear whether New York City can act unilaterality in changing its voting laws to accommodate an RCV system, or if the City would need to seek approval from state legislators in Albany.  New York State’s constitution, like many states, contains a “home rule” provision, which delegates certain powers to cities and other local municipalities, similar to how the U.S. Constitution delegates certain powers (including regulating elections) to the states.  New York’s constitution allows cities like New York to pass laws “not inconsistent” with the state constitution, which generally means laws that don’t dip below the floor established by state law.  For example, a law that attempted to raise the minimum wage in New York City above New York State’s minimum wage was deemed inconsistent with state law, since it would have had to supersede state law that established a statewide minimum for hourly compensation.  There are other important factors courts have looked to when interpreting New York’s home rule provision, including legislative history and existing state regulation.

State courts have generally sided with New York City in issues surrounding unilateral election regulation.  For example, a city law regulating campaign contributions significantly more than state law, as well as a city law establishing term limits for various elected officials, have both survived judicial scrutiny.  However, these are small measures when compared to implementing a completely different methodology for choosing elected officials.  In the event that New York City chose to circumvent Albany in order to implement RCV, a court will need to determine whether or not the state constitution’s home rule provision allows a municipality to overhaul its voting scheme in what most would consider a pretty drastic manner.  For New York City, there is always the option of going through Albany and avoiding this issue altogether.  However, the state has often lagged behind the progressive goals of New York City.  Additionally, it’s very possible that Democrats in Albany might actually prefer to keep winner take all elections in place in New York City, as RCV creates opportunities for minority parties and candidates—on the right and on the left—to infiltrate New York City’s Democratic stronghold.  Whatever the course of action, proponents of RCV in New York City should prepare for a fight—both legally and politically.

Policing in America: On Behalf of the Community

By Eric J. Miller*

The development of the institutional approach to policing, and procedure more generally, is one of the most exciting features of criminal procedure over the past decade. More accurately, there are a series of institutional approaches—doctrinal, philosophical, sociological, empirical—that all claim that there is independent value in regulating the police, separate from the additional value of protecting suspects’ rights.

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Policing in America: Rafa Esparza’s Red Summer

Yxta Maya Murray

Yxta Maya Murray is a professor at Loyola Law School.  She has authored six novels, and also serves as a contributing editor for Artillery Magazine, an arts publication based in Los Angeles.

Murray photo

On Saturday, August 13, 2016, from dawn to dusk, performance artist Rafa Esparza carved weapons out of dead trees in a small clearing of Los Angeles’s Elysian Park.  His piece, commissioned by the Hammer Museum in Los Angeles for its Made in L.A. biennial exhibition,[1] was titled  RED SUMMERfreedom is an endless meeting.  And I don’t miss your heat.  But here we are again (“Red Summer”).[2] 

Red Summer memorializes the year 2015, which Esparza assesses as “the bloodiest in the recorded history of police killings in the United States.”[3]  In an effort to bear witness to that period of atrocity, Esparza stood in a drought-burned patch of the park that sits within hearing distance of the Los Angeles Police Department’s (“LAPD”) nearby shooting range.  Esparza wore a politics-of-respectability[4] business suit with a white tie and grey Nike sneakers.  A large bulls-eye glimmered on the back of his jacket.  Formed out of hundreds of yellow, orange, blue, and black sequins that had been stitched carefully into the fabric, it resembled a wound or a bruise.  Esparza, a tall and powerfully built man, stood in a circle of black, fuzzy eucalyptus trees. A few hundred feet away, six silent audience members (including the author) kept watch.  Most of them huddled in lawn chairs beneath a patchy shadow cast by one of the grove’s zombie eucalypti.  Esparza did not look at them or acknowledge them.  In one hand he held a knife, and in another he grasped a stick he had torn from one of the tree branches that had fallen to the dry ground.  The sun beat down.  He wore no hat.  The sweat beaded on his forehead.  He slowly and patiently whittled his stick into a dagger while the LAPD officers practiced their audible marksmanship.

Ka-pang.  Ka-pang.  Ka-pang.

When the shots rang out, Esparza would fall to the earth as if dead, his arms stretched out beside him.  Then he would get back up to his knees, dust himself off, stand up, and recommence his work.

Esparza was born in 1981 in Los Angeles and grew up in Pasadena.[6]  Trained in fine arts at East Los Angeles College and UCLA, he has worked in the mediums of sculpture and painting. [7] These days he makes his name through endurance performance. [8]  His endeavors recall the politically-minded spectacles of Marina Abramović,[9] who once froze herself on a block of ice after carving a pentacle (a symbol of Communism) into her stomach, and U.S. artist Ron Athey,[10] who has used physical piercing and bloodletting to critique a homophobic Christian church.

Esparza, a gay Chicano, also takes aim at political repression.[11]  He does this through body estrangement and by engaging himself with tierra, or earth.  In April 2011, Esparza performed Bust[12] in view of Los Angeles’s Twin Towers Correctional Facility, which has a population that is nearly 80 percent[13] Black and Latino.  Esparza placed himself on a sidewalk across from two bail bond shops and used slow, persistent hacks of a chisel to break out of a block of rough concrete[14].  In 2014, he presented Escarbando:  Dedicaciones para Mexico y Los 43.[15]  In this action he dug a hole in an abandoned Mexicali street for three hours in remembrance of the forty three students from Ayotzinapa Rural Teachers’ College who went missing in Guerrero that same year.[16]  And in 2015, he performed I have never been here before[17]  He built an elliptical performance space within Los Angeles Contemporary Exhibitions’ gallery out of 5,000 adobe bricks that he fashioned with the aid of his father[18] (as well as assistants).

Red Summer also explores these themes, as Esparza uses earth and body extremity to rail against police killings.  During his performance, Esparza spent the day withstanding Elysian Park’s parching heat and his own fatigue to whittle a stack of small spears.  These frail and useless totems of self-defense proved powerful metaphors.[19]  In 2015, LAPD members shot 38 people.[20]  Eight of these, about 21 percent, were African-American.[21]  Twenty-two, about 58%, were Latino.[22]  African-Americans make up 9% of the population of Los Angeles, and Latinos make up 48%.[23]

In staging Red Summer, Esparza offered a key piece of intelligence for a law and politics addressing police brutality that tears apart the lives of people of color:  He expressed the anguish and existential disarray caused by the seemingly endless reports of police murders of civilians.  By ritually re-enacting death-by-officer in the dry and dying forest, Esparza created a mounting and sometimes intolerable psychological catharsis.

This confrontation with agony does not find an easy place within the law.  Scholars have observed that lawyers pride themselves on their refusal to engage with incendiary feeling, primarily because of their beliefs that emotions betray rationality, and that their indulgence can call the law’s legitimacy into question.[24]  But “law and the emotions” scholars question this received wisdom.[25]  As Kathryn Abrams and Hila Keren observe:  “[T]he self-conscious operation of affective response [can]. . . humanize and strengthen the task of adjudication, helping judges to understand their daunting power and its implications for the lives of those before them.”[26]

Yet how can we really know how people feel about police brutality?  Does it suffice to say merely that many people of color might be upset or chagrined?  In the days after Charlotte, NC, District Attorney Andrew Murray declined to press charges against Officer Brentley Vinson for his September 20, 2016 killing of Keith Lamont Scott, city officials  described the emotional impact of Murray’s decision as follows:  “We recognize that for some members of our community, this news will be met with different reactions.  No matter where you stand on the issue, the events surrounding the Scott shooting have forever changed our community, and we intend to learn from and build a stronger Charlotte.”[27]  This muted and disengaged description of the community response to Scott’s killing buried the real, and far more woeful Charlotte reply, which was full of rage and tears.[28]  Even more egregious, when a jury acquitted Caesar Goodson, Jr., of the murder of Freddie Gray in Baltimore, MD, in June 2016, city Fraternal Order of Police President Gene Ryan said the group was pleased with the ruling and that “[i]t [was]time to put this sad chapter behind us.”[29]

The lack of officer responsibility combined with perceived false official empathy leaves people of color with no healthy connection to the state.[30]  Charlotte police had already come to realize after the death of Scott that “[p]rotesters perceived them as indifferent or apathetic to their concerns,”[31] and the anodyne press release certainly could not have helped.  Also, after Goodson’s acquittal and Ryan’s statement, an atmosphere of despair and numbness settled over West Baltimore.[32]

But these dismissive responses to the psychic aftershocks of police brutality pale in comparison to the alarming performance of Jeff Sessions, Donald Trump’s newly-appointed Attorney General as of this writing.[33]  In 2015, Session took part in a Senate subcommittee hearing titled The War on Police: How the Federal Government Undermines State and Local Law Enforcement.[34]  Here, Sessions blithely, and sometimes merrily, criticized the national protests against the killing of Michael Brown and the resulting consent decree that the Civil Rights Division at the U.S. Department of Justice reached with the city of Ferguson, MO.[35]  Sessions said:

[T]he marches and protests about police do have the tendency to cause [the police]to . . . stay under the shade tree and not walk the street like community based policing . . . . [but]. . . . Police  . . . have to be able to defend themselves, do they not?  . . . . And sometimes that can lead to misunderstandings and false claims by the criminal against the police officer. . . . I keep thinking of that Gilbert and Sullivan . . . . The Pirates of Penzance [lyric]:  “The Constabulary duties are to be done, to be done, the policeman’s lot is not a happy one.”[36]

Here, like the Charlotte officials and Ryan, Sessions pivoted almost immediately away from the specter of thousands of traumatized protesters.  But then he went on to insult the people’s outcry by using it as an opportunity for political posturing and bizarre recitations of song.[37]

It is difficult to imagine why legal and political actors may respond to police murders, and stunning public grief, with such callousness.  Members of the community and legal scholars might give them the benefit of the doubt, and posit that these officials have not had the opportunity to understand how people feel.  Indeed, it can be very challenging to experience authentic compassion[38] — a more arduous task for some, perhaps, than for others.[39]

But beyond attempting to comprehend the stunning psychologies of Charlotte, Baltimore, and U.S. leaders, we may also worry that their responses to the immense suffering created by police abuse creates propaganda that diverts prosecutors, judges, juries, legislators, and the voting public from that catalyzing torment.  It is much easier to quickly skip over a “sad chapter” or explain events away with the normalizing specter of “false[ly]claim[ing]criminals”[40] than to dwell on the despair of others.[41]  Yet without sustained public and legal attention to that pain, reform may not come.[42]

How are we to humanize law, then?  How might we redirect a public and legal focus onto that which is almost unspeakable?  The advocates of the law and literature school of thought look to novels and short stories to understand the overwhelming emotions that the justice system provokes.[43]  Legal scholars also concentrate on visual culture – or, what I have described in other word as “artifacts” — in order to better understand the world in which we live and the way that law operates in it.[44]  So, too, public officials, legal actors, and those they represent might look to relevant performance art when contemplating whether, and how, to respond to police brutality.  Such art details the emotive world.[45]  Moreover, a legal scholarly attention to performance art that expresses terror and sorrow over police killings finds synchronicities with the work of Gerald Torres and Lani Guinier, whose 2014 article  Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements illustrates how “social movements and organized constituencies” create “authoritative interpretive communities” within the law:[46]  Like social movement activists, performance artists and their audiences can also build legitimate interpretations of legal forces and their traumatic effects.

Rafa Esparza’s rigorous, scorching work offers a case in point.  Red Summer aids our comprehension of the events that shook Ferguson, Baltimore, St. Paul, Baton Rouge, and the other cities that joined this unfortunate club.[47]  On that Saturday in Elysian Park, Esparza whittled, stumbled, fell, and got back up over and over again, as the bulls-eye shimmered on his back.  Ka-pang, ka-pang.  The dust clung to his suit.  His tie had become loosened.  The sweat streamed down his face.  His little heap of daggers looked like useless toys or trash.  His spectators watched with exhausted yet attentive faces.

Esparza inhabited the dying forest and tried to withstand the killings of hundreds of men and women of color by the police, and in so doing translated for his spectators the horror that seemed to escape the likes of Charlotte officials, Ryan, and Sessions.  The small audience assembled in the vanishing shade suffered, too, as they watched Esparza take the agonies of these deaths into his own targeted body.  Together, we created an authoritative interpretive community[48] wherein we tried to fathom the destabilizing tragedies that were the police killings of Donnell Thompson, shot in Compton, Los Angeles, on July 28, 2016[49] and Jesse Romero,[50] shot in Boyle Heights, Los Angeles, on August 9, 2016.

Esparza’s art expresses minorities’ feelings of powerlessness in the face of state aggression, but it also resists violence with the resilience that many of us are finding increasingly difficult to muster.  It is time for legal actors to pay attention to such emotions, and the artwork that expresses them, even though it will require patience and cause discomfort.  In the face of official uncaring, sorrow, and the ever-widening chasm that yawns between the state and people of color, such a difficult contact with police brutality, and the fear and grief that it generates, would be well worth the work.

*Professor, Loyola Law School.  With many thanks to Sasha Natapoff, Eric Miller, L. Song Richardson, and the editors of the Fordham Urban Law Journal Online.

[1] Made in L.A. 2016: a, the, though, only, Hammer Museum, https://hammer.ucla.edu/made-in-la-2016/ (last visited Feb. 5, 2017).

[2] Off-site program: RED SUMMERfreedom is an endless meeting.  And I don’t miss your heat.  But here we are again, Hammer Museumhttps://hammer.ucla.edu/redsummer/ (last visited Feb. 5, 2017).

[3] See id.  See also Dylan Petrohilos, Here’s How Many People Police Killed In 2015, ThinkProgress (Dec. 28, 2015), https://thinkprogress.org/heres-how-many-people-police-killed-in-2015-e9e78c890966#.on5vxbcu6 (putting the count at 1,186 people).

[4] “[T]he politics of respectability [requires that]. . . a ‘stigmatized minority’ must make every effort to present itself so as to enhance the ‘reputation of the group’ and ‘avoid the derogatory charges lying in wait in a hostile environment.’” Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 1039 (2002) (quoting Randall Kennedy, Race, Crime & the Law, at 17 (1997))

[5] Doug Smith, Recovery Plan Lies Dormant as Elysian Park’s Exotic Trees Die Off, L.A. Times (Dec. 21, 2016, 3:00 AM), http://www.latimes.com/local/california/la-me-elysian-park-dieoff-20151221-story.html.

[6] See Rafa Esparza: mas gestos y mas caras, Hammer Museum, https://hammer.ucla.edu/made-in-la-2016/(last visited Feb. 23, 2017) (“Rafa Esparza was born in 1981 in Los Angeles.”); Carolina A. Miranda, Artist Rafa Esparza is Using 5,000 Adobe Bricks to Make a Building-Inside-a-Building in Hollywood, L.A. Times (July 23, 2015, 8:30 AM), http://www.latimes.com/entertainment/arts/miranda/la-et-cam-rafa-esparza-uses-5000-adobe-bricks-to-construct-a-building-inside-a-building-at-lace-in-hollywood-20150722-column.html#page=1. (last visited Feb. 23, 2017) (“Esparza, 33, was born and raised in Pasadena, the son of Mexican immigrants from Durango.”).

[7] See Rafa Esparza: mas gestos y mas carasid. (“Esparza studied at East Los Angeles College before transferring to the University of California, Los Angeles, where he received his BFA. He currently works in installation, sculpture, drawing, painting, performance, and other mediums and has presented his work at a variety of sites, including traditional fine art contexts and community-based platforms as well as outdoor public locations that he has independently sought out and organized.”).

[8] See Tatiana A. Koroleva, Subversive Body in Performance Art 44 (2008) https://books.google.com/books?id=fZEBXX9MAvkC&pg=PA44&dq=endurance+performance+art&hl=en&sa=X&ved=0ahUKEwj34MW72KnSAhUIwmMKHUluCTMQ6AEIGjAA#v=onepage&q=endurance%20performance%20art&f=false (“Questioning the physical limits of their bodies, artists, working in the performance of endurance, strived for the overcoming of the singularity of the subjective body.”).

[9] See Marina Abramović, Thomas Lips, Lima (undated) http://www.li-ma.nl/site/catalogue/art/marina-abramovic/thomas-lips-1975/7215.

[10] See, e.g., Russell MacEwan, Ron Athey, ‘Body Art,’ YouTube (Oct. 26, 2011), https://www.youtube.com/watch?v=rBc1vul9JUI (depicting documentary about artists, including Athey, who use blood, flesh, and pain in their artwork).

[11] On Esparza’s identity, see note 17, infra.

[12] Dorian Wood, Excerpt from “Bust” by Rafa Esparza, YouTube (Apr. 12, 2015), https://www.youtube.com/watch?v=4ziORnDkQP0.

[13] JFA Institute, Evaluation of the Current and Future Los Angeles County Jail Population 15 (2012), http://www.jfa-associates.com/publications/ppsm/Los%20Angeles%20Jail%20Projections.pdf (“The population is largely male (88%) and largely non-white (49% Hispanic, 31% Black, and 15% white) with an average age of 34 years. Approximately 13% of the population is age 50 years or older while 28% are [sic]between the ages of 18 and 25 years.”).

[14] See note 12, supra.

[15] Rafa Esparza, escarbando: dedicaciones a Mexico y Los 43, Vimeo (undated), https://vimeo.com/140491934.

[16] Patrick J. McDonell & Celia Sanchez, It’s Been Two Years Since 43 Mexican Students Disappeared, and We Still Don’t Know Exactly What Happened to Them, L.A. Times (Sept. 26, 2016, 6:35 PM), http://www.latimes.com/world/mexico-americas/la-fg-mexico-ayotzinapa-20160926-snap-story.html.

[17] Carolina A. Miranda, supra note 6.

[18] Oscar Garza, Artist Rafa Esparza Moves a Load of Earth for ‘Made in LA’ Exhibition, 89.3 KPCC: The Frame (June 9, 2016), http://www.scpr.org/programs/the-frame/2016/06/09/49512/artist-rafa-esparza-moves-apprehension-and-earth-t/ (“The very first time that I asked him to help me make bricks is, um — we actually weren’t on speaking terms. I had just come out. I think for my father, at the time, it was very easy for him to not acknowledge and to maybe, perhaps, forget that I’m gay.”).

[19] On the difficult-to-impossible options for outsiders to challenge police brutality, see Eric J. Miller, Police Encounters with Race and Gender, 5 U. C. Irvine L. Rev. 735, 738 (2015) (“To the extent that an officer places her authoritarian style of policing above the right of the civilian to contest that policing and does so in discriminatory ways, the officer not only engages racial or gender or class discrimination but also denies the civilian a form of equal participation in the political community. In practice, then, the republican idea that citizens can actively contest police actions is currently the least likely to work for women and people of color.”).

[20] Kate Mather & James Queally, More Than a Third of People Shot by L.A. Police Last Year Were Mentally Ill, LAPD Report Finds, L.A. Times (Mar. 1, 2016, 10:48 PM), http://www.latimes.com/local/lanow/la-me-ln-lapd-use-of-force-report-20160301-story.html.

[21] Id.

[22] Id.

[23] Id.

[24] See, e.g., Richard A. Posner, Emotion versus Emotionalism in Law, in The Passions of Law 310 (Susan A. Bandes ed., 1999) (“One might put it this way:  emotion short-circuits reason conceived of as a conscious, articulate process of deliberation, calculation, analysis, or reflection.”).

[25] See, e.g., Susan A. Bandes & Jeremy A. Blumenthal, Emotion and the Law, 8 Ann. Rev. L. & Soc. Sci. 161, 162 (2012) (“In the legal realm, the term [law and the emotions]has long functioned as a catchall category for much of what law aspires to avoid or counteract: that which is subjective, irrational, prejudicial, intangible, partial, and impervious to reason.”).

[26] Kathryn Abrams & Hila Keren, Who’s Afraid of Law and the Emotions? 94 Minn. L. Rev. 1997, 2007 (2012).

[27] Michael Gordo, Marsh Washburn, Ames Alexander & Fred Clasen-Kelly, District Attorney Exonerates Officer, Denounces Rumors in Killing of Keith Scott, The Charlotte Observer (Nov. 30, 2016, 10:58 AM), http://www.charlotteobserver.com/news/special-reports/charlotte-shooting-protests/article117921218.html.

[28] Elizabeth Leland, How will Charlotte answer Keith Lamont Scott’s death, week of protests?, Charlotte Observer, Sept. 24, 2016, : http://www.charlotteobserver.com/news/local/crime/article103995666.html#storylink=cpy

(“Within two days, the city would become known for an explosion of violence set off by the shooting death Tuesday afternoon of 43-year-old Keith Lamont Scott as he waited for his son to arrive on a school bus.”).

[29] Lynh Bui, Derek Hawkins & LaVendrick Smith, Baltimore Officer Acquitted of Murder, Other Charges in Freddie Gray Case, Wash. Post (June 23, 2016), https://www.washingtonpost.com/local/public-safety/judge-to-deliver-verdict-for-police-officer-charged-with-murder-in-freddie-gray-case/2016/06/22/7a0e015b-3b12-4294-8b72-84a36e1715cd_story.html.

[30] See Leland, note 28, supra (“’It’s like we’re being ignored when we are crying out for help.’”) (quoting Aaron Harris).

[31] Keith Scott Killing: Protesters in Charlotte Upset over Lack of Charges, MyFox8.com (Dec. 1, 2016, 1:33 PM), http://myfox8.com/2016/12/01/keith-scott-killing-protesters-in-charlotte-upset-over-lack-of-charges.

[32] See Colin Campbell & Andrew Dunn, West Baltimore Residents React to Officer Goodson Acquittal, Balt. Sun (June 23, 2016, 4:13 PM) (quoting Baltimore resident Aaron Burch) (“‘Justice hasn’t been served. Nothing has happened. . . . If nothing is going to happen it’s bound to happen again.’”).

[33] See generally Amber Phillips, 10 Things to Know About Sen. Jeff Sessions, Donald Trump’s Pick for Attorney General, Wash. Post (Jan. 10, 2017), https://www.washingtonpost.com/news/the-fix/wp/2016/11/18/10-things-to-know-about-sen-jeff-sessions-donald-trumps-pick-for-attorney-general.; President Trump Participates in the Swearing-In of the Attorney General, Jeff Sessions, The White House, Feb. 9, 2017, https://www.whitehouse.gov/featured-videos/video/2017/02/09/president-trump-participates-swearing-attorney-general-jeff (last visited Feb. 23, 2017).

[34] 114 Cong. (2015) [hereinafter War on Police], http://www.judiciary.senate.gov/meetings/the-war-on-police-how-the-federal-government-undermines-state-and-locallaw-enforcement (available in searchable form at https://www.c-span.org/video/?400865-1/hearing-civil-rights-policingpractices&start=NaN).

[35] Id. at 1:16:27; see also Consent Decree, United States v. Ferguson, No. 4:16-cv-000180-CDP (E.D. Mo. Mar. 17, 2016) (“[T]he City of Ferguson (“City”) agrees to continue to change how FPD polices, and how it enforces the Ferguson Municipal Code and resolves municipal charges.  This Agreement sets forth terms and requirements for the City and FPD to continue to reorient their approach to law enforcement to focus on community engagement and collaborative partnerships with groups and individuals throughout Ferguson, including those segments of the community that have not previously had strong or positive relationships with FPD or the City.”).

[36] War on Policesupra note 34, at 1:16:27).; see also Ames C. Grawert, Analysis: Sen. Jeff Sessions’s Record on Criminal Justice, The Brennan Ctr. 5 (Jan. 4, 2017) (detailing the “shade tree” comment).

Mr. Sessions’ antipathy to such consent decrees proves no surprise, as he demonstrated his hostility to them in previous writings. See Jeff Sessions, Forward to Michael E. DeBow, Gary J. Palmer & John J. Park, Jr., Consent Decrees in Institutional Reform Litigation: Strategies for State Legislatures, Ala. Pol’y Inst. 3 (2008) (“One of the most dangerous, and rarely discussed, exercises of raw power is the issuance of expansive court decrees. Consent decrees have a profound effect on our legal system as they constitute an end run around the democratic process.”).

The White House has just announced further support of Sessions’ “war on the police” outlook.  On or around January 23, 2017, the White House’s website posted an entry titled Standing Up For Our Law Enforcement Community, which declares: “The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.” Https://www.whitehouse.gov/law-enforcement-community (last visited Feb. 9, 2017); see also Sophie Tatum, White House Website Warns of ‘Dangerous Anti-Police Atmosphere’ in America, CNN (Jan. 23, 2017, 1:59 PM), http://www.cnn.com/2017/01/23/politics/white-house-website-law-enforcement.

[37] By acting in this way, Sen. Sessions may have contributed to public perceptions of the police force and the justice system as being racist.  This development does not just threaten people’s confidence in “the system” and contribute to political malaise.  As L. Song Richardson has shown, public belief in police and official racism, and police officers’ understandings that they are perceived as racist, form powerful forces that contribute to police violence against people of color.  See L. Song Richardson, Police Racial Violence:  Lessons From Social Psychology, 83 Fordham L. Rev. 2961, 2969 (2015) (“Officers who believe black citizens will evaluate them as racist also likely suspect that those same citizens do not respect them and do not view them as legitimate.  As [an important]. . .  study revealed, these anxieties can translate into concerns for their safety when confronting black citizens.”).

[38] See, e.g., Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation:  The Optics of Eminent Domain in Motor City, 23 Geo. J. on Poverty L. & Pol’y 395, 450 (2016) (“‘being with’ another person is an effort to perceive them without illusion.  I risk catastrophic understatement when I admit that this proves a very ambitious aspiration, even among intimates.  Artists, psychoanalysts, and philosophers regret the near or total impossibility of such lucid relations.”).

[39] Evidently, one might be trained in compassion, and those without an education in placing themselves imaginatively in the positions of others will find themselves lacking in that skill. See Helen Y. Weng et al., Compassion Training Alters Altruism and Neural Responses to Suffering, 24 Psychol. Sci. 1171, 1176-77 (2013) (“Individuals who trained in compassion for 2 weeks were more altruistic toward a victim after witnessing an unfair social interaction compared with individuals who trained in reappraisal and individuals in a validation control group.”).

[40] See text accompanying note 36, supra.

[41] See, c.f., Susan Sontag, Regarding the pain of Others 114 (2003) (“Someone who is perennially surprised that depravity exists, who continues to feel disillusioned (even incredulous) when confronted of evidence of what humans are capable of inflicting in the way of gruesome, hands-on cruelties upon other humans, has not reached moral or psychological adulthood.”).

[42] Martin Luther King Jr.’s observations on the roles of pain and empathy in social change will be well remembered here. See Martin Luther King, Jr., Letter from Birmingham Jail (Apr. 16, 1963), reprinted in Martin Luther King, Why We Can’t Wait 92-93 (1963) (“[W]hen you are harried by day and haunted by night by the fact that you are Negro, living constantly on tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of ‘nobodiness’– then you will understand why we find it difficult to wait.”).

[43] See, e.g., Martha C. Nussbaum, Love’s Knowledge 5 (1990) (“[C]ertain truths about human life can only be fittingly and accurately stated in the language and forms characteristic of the narrative artist.”).

[44]  Yxta Maya Murray, Rape Trauma, the State, and the Art of Tracey Emin, 100 Cal. L. Rev. 1631, 1635 (2012) (“My in-depth study of visual arts in connection with rape law . . . . incorporate[s]art’s revelations of women’s buried experience–or, as I conceive of these details, artifacts–into legal understandings.”); Richard K. Sherwin, Introduction:  Law, Culture, and Visual Studiesin Law, Culture and Visual Studies xxxvi

(Anne Wagner & Richard K. Sherwin, eds. 2013) (“It behooves us . . . to cultivate a proper understanding of the visual codes that are operating in the meaning-making process.  The stakes involved in undertaking this task are greatest when it comes to law, for that is where power and meaning converge.”)..

One of the most compelling engagements with visual culture and the justice system will be found in the work of Jonathan Simon.  It bears noting that Esparza’s Bust, see note 12, supra, evokes the psychological immobilization and immurement created by mass incarceration, and as such, resonates as a companion piece to Simon’s evocative study of photographs used in the case of Brown v. Plata, 563 U.S. 493 (2011).  See Jonathan Simon, Mass Incarceration on Trial:  A Remarkable Court Decision and the Future of Prisons in America 146-150 (2014).

[45] See, e.g., Jennifer Doyle, Hold It Against Me: Difficulty and Emotion in Contemporary Art 15 (2013) (“Performance art offers a particularly rich context for exploring questions regarding the presence of emotion, audience, and event.”); Yxta Maya Murray, Inflammatory Statehood, 30 Harv. J. Racial & Ethnic Just. 227, 247 (2014) (looking at the endurance art of Yugoslav performance artists who comprehend the suffering of those who live under tyranny).

[46] Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements, 123 Yale L.J. 2740, 2745 (2014).

[47] For a partial review of cases, see Daniel Funke & Tina Susman, From Ferguson to Baton Rouge: Deaths of Black Men and Women at the Hands of Police, L.A. Times (July 12, 2016, 3:45 PM), http://www.latimes.com/nation/la-na-police-deaths-20160707-snap-htmlstory.html; see also Fatal Force, The Wash. Post, https://www.washingtonpost.com/graphics/national/police-shootings-2016 (last visited Feb. 9, 2017) (database of persons shot and killed by police in 2016).

[48] See Guinier & Torres, supra note 46.

[49] James Queally, Cindy Chang & Veronica Rocha, Donnell Thompson Jr., 27, L.A. Times:  Homicide Rep., (Aug. 1, 2016), http://homicide.latimes.com/post/donnell-thompson-jr.

[50] Annie Gilbertson, Officer Who Shot 14 Year-Old in Boyle Heights Was on Vandalism Call, KPCC (Aug. 10, 2016), http://www.scpr.org/news/2016/08/10/63460/1-dead-in-officer-involved-shooting-in-boyle-heigh.

Policing in America: American Policing in the Post-Ferguson Era

By Justin Nix*

American policing is currently in the midst of a legitimacy crisis, fueled primarily by numerous highly publicized fatal shootings of black citizens over the last two and a half years.[1] Arguably the most consequential was the August 2014 shooting of Michael Brown in Ferguson, Missouri. This incident sparked protests throughout the United States and fueled the growth of the Black Lives Matter Movement and Campaign Zero, which have helped raise awareness about police use of force.[2] Since Ferguson, many claims have been made about crime, policing in general, and police use of force – particularly against minorities. I outline and discuss some of the more prominent claims below, and comment on the need for better official data, which would provide for a more informed national dialogue on police use of force. I conclude by reviewing some promising avenues for police training moving forward.

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Guilty of Homelessness: The Criminalization of Homelessness in the United States

Each year, the Urban Law Journal holds the Jason Libou Online Writing Competition, which considers student-written work on topics in urban planning, education, urban criminal justice, and energy and sustainability. Samantha Frankel‘s piece on the growing problem of homelessness in U.S. cities, this year’s winning submission, explores the ways in which urban governments, rather than addressing the causes of homelessness, have enacted anti-homeless laws that serve to exacerbate the problem.

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On Behalf of the Community

Eric J. Miller*

The development of the institutional approach to policing, and procedure more generally, is one of the most exciting features of criminal procedure over the past decade. More accurately, there are a series of institutional approaches—doctrinal, philosophical, sociological, empirical—that all claim that there is independent value in regulating the police, separate from the additional value of protecting suspects’ rights.

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DOJ Drops Long Battle Against Texas Voter ID Law With Case Pending in Fifth Circuit

By Brendan Kreckel

On April 9 the Fifth Circuit Court of Appeals ruled for the second time that a 2011 Texas voter ID law was passed with intent to discriminate against eligible minority voters. This decision comes just three months after the the U.S. Department of Justice’s Civil Rights Division (“DOJ”) dropped its complaint opposing the Texas bill, which imposed new ID requirements for eligible voters at the polls. The DOJ withdrew after three years and close to $1 million worth of litigation.

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Will Your Next Emergency Room Visit be Broadcast on National Television?

By Shaun Prunotto 

American television audiences have long enjoyed “reality” programs that grant unfiltered access to emergency personnel at work. Police actions are frequently documented and broadcast by programs such as A&E’s Live PD and Cops, which recently aired its 1,000th episode. Production companies, including ABC News (“ABC”) and Discovery, expanded the genre by embedding camera crews in some of the nation’s busiest emergency rooms and trauma units. Mark Chanko’s death in 2011, however, at New York-Presbyterian Hospital (“NYP”) and its subsequent broadcast on ABC’s NY Med has resulted in proposed legislation, a $2.2 million settlement between a federal agency and NYP for violations of the federal HIPAA Privacy Rule, and an ongoing legal battle in New York’s state courts. While the effect this backlash will have on the genre’s overall feasibility is still unknown, the genre’s filming practices within New York are changing dramatically.

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