Article

A PRELUDE TO A CRITICAL RACE THEORETICAL ACCOUNT OF CIVIL PROCEDURE

Author / Creator
Portia Pedro
Part of
Virginia law review, 2021, Vol.107, p.143-165
Summary
  • [...]had no parent or guardian with me. Because they took my dad and I to the station for no reason. Because the deputies stopped us with such a show of force, it is hard to imagine them peacefully accepting a refusal to search. Under Federal Rule of Civil Procedure 56, a judge should grant summary judgment only if there is no genuine dispute of material fact (such that the movant-here, the police officer, department, and city-is entitled to judgment as a matter of law).11 According to precedent, when deciding a motion for summary judgment, judges must look at the record in the light most favorable to the non-moving party (the plaintiffs who police harmed or whose loved ones have been harmed) and must draw reasonable inferences in that party's favor.12 Under the doctrine of qualified immunity, police officers, their departments, and the cities for which they work are immune from civil suit-meaning that they aren't liable civilly-in certain circumstances. Qualified immunity protects the defendants from litigation if the officer did not violate a clearly established constitutional right.13 Through civil procedural decisions against Black plaintiffs harmed by police, the Supreme Court has affirmed lower courts that have granted summary judgment because they found that defendants were protected by qualified immunity even when there was a genuine factual dispute that should have gone to the jury.14 There might be much more if we dig beneath the surface to critically analyze civil procedure as a tool to reinforce racial subjugation.

Date
2021-01-01
Publication
Virginia law review
Volume
107
Pages
143-165
Peer-reviewed
Yes (Scholarly)
Language
English
Publisher
The Virginia Law Review Association
ISSN
0042-6601
EISSN
1942-9967

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Subjects

  • License plates
  • Privileges & immunities
  • Race
  • Racial justice
  • State court decisions