ANNE COUGHLIN: So today
I'm really excited. I'm teaching a case to
you all that I've not taught before in this context,
so we'll see how it goes. I'm hoping that some of you had
a chance to take a look at it. Did you? OK. So I'm not going to
cold call on anyone. That is a feature of first year
classes and upper year classes as well. But there will be the
opportunity for me to ask some questions and see
what you make of all of this. So what I've chosen for you
is a very important case. It's a very important case in at
least three areas of the law-- criminal law, criminal
investigation, and constitutional law. It sits at the intersection
of all of those courses. I'm pretty sure that many
of you will encounter it in one of your classes,
maybe more than one of your classes,
wherever you go. So this is the famous
Papachristou case. It's now, I guess, about
half a century old, but welcome to the law. This is a relatively new case
as far as lawyers are concerned. Long in the tooth but
remains very important. So that is the case that
I'm bringing to you. I'm bringing it to
you because it's going to give you
the opportunity to do a couple, at least,
of important things. One of the things that it will
give you the opportunity to do is to think about how criminal
law enforcement is delivered through a complex interaction
among different bodies of law and among different actors,
different institutional actors. So think of prosecutors,
think of police officers, think of lawyers, defense
lawyers, judges, jurors. It's a very complicated
system, and this case gives you a glimpse of
some of that complexity. A nice way to think about it. The other thing
that's fascinating about Papachristou-- and I
want to put this on the table immediately-- is that though the
case has a very long history, the history of the vagrancy and
loitering laws is fascinating. You'll notice that
Justice Douglas spends a little bit of time on
it in Papachristou itself and our Dean Risa Goluboff has
written a really terrific book called Vagrant Nation
that digs into the history of the loitering
and vagrancy area. But here's the thing. It requires you to think deeply
about what's one of, I think, the most important contemporary
questions, one of the questions with which your
generation has to grapple, and that's violence in policing. So this is a case that is a
substantive criminal law case, but if you've had a
chance to look at it you can tell that the case
is also all about policing and the amount of
authority and discretion that are given to
police when they are working on the streets. And again, it's not just me. It's many, many
people in the academy, many politicians, many members
of communities, many families. This is a very big deal. What can we do to restrain,
if not eliminate altogether, the police violence
that has afflicted so many of our communities? So there you have it. That's a really
heavy topic, but I'm assuming that that's why
you're going to law school. Right? You want to be thinking about
how you as young lawyers can participate in-- even if you
don't work in the criminal law area, how you can
think about making a difference in this area. And you can. You can. You can. I have that for you too. So let's talk about
Papachristou a little bit. If you looked at
the case, I gave you almost the entire case. Sometimes the casebook editions
of cases are heavily edited. This one was not heavily edited. I mean, how could you
edit out Thoreau, right? I'd have to be a
lunatic to do that. But it's a very
lightly edited case. I did remove a bunch
of the footnotes to make it more
manageable for you, but you have virtually the
entire text of the case, and it's a really
interesting case. You know what
happened in the case. I think there are eight people,
eight different defendants who, at various times, are
pulled over or stopped by the police in
Jacksonville and they end up being charged with
this crime called loitering or vagrancy or common
thief, or whatever it is. And so each of these
people is arrested, charged, the case goes to
trial, they're convicted. They then appeal
their convictions up through the Florida
Appeals process. The Florida courts
uphold their convictions, which involved fines
and jail sentences, and then at the end of all
of that procedural stuff they file a petition for
a writ of certiorari. The United States Supreme
Court grants cert. Boom, here we go. And as you know, at
the end of the day the court throws out the
convictions on the ground that the Jacksonville
ordinance is unconstitutional. Now one of the fun
things about the case is the court doesn't
cite the Constitution. It doesn't quote
the Constitution. So this is something
that I always say to my first year students
you'll have to get used to. It's like coming into a room. There are all these people
having a conversation. You're a newcomer,
and no one bothers to stop and say
to you, ah, here's what we're talking about. Right? Here are the things
that you need to read. They just carry
on a conversation that they've been having
for hundreds of years. You have to play catch up. Hopefully your
professors will help you. So it's the due process
clause of the 14th Amendment that is at issue in the case. No state shall
deprive any person of life, liberty, or property
without due process of law. So at the end of the day,
what the Supreme Court decides is that that ordinance, which
we're going to talk about now, violates the due process
clause, and what we need to do is to talk a little bit
about what the reasoning is. What's the problem? What's wrong with
this little ordinance that would get the Supreme
Court activated to throw it out? I'm pulling this out. Did you take a look
at the ordinance? Flip over to the last
page, and there you have the text of the ordinance. And one of the very first
things that my criminal law students learn is that this
is always where you start. How is the crime defined? You've got to go to
the criminal code, whether that be a statute book. Here it's a set of
city ordinances. You always have to go to
the code, read the crime, figure out what are
the ingredients, what are the elements, what does
a prosecutor have to prove up to convict this person. So you're reading
this ordinance, I take it many of you
for the first time. What do you make of it? What is the ordinance punishing? What is the stuff
that's forbidden? Yeah? STUDENT: It feels like
activities are relatively subjective in definition. ANNE COUGHLIN: So that's great. That's very abstract. The one non-abstract word that
I heard you say was activities, and you're right. They're activities that
are subjective, you said? STUDENT: Yeah. ANNE COUGHLIN: So what
we always want to do is to figure out more
precise-- be more precise. So, activities. What activities? What are the activities? STUDENT: You mean what
way that people can-- ANNE COUGHLIN: No, from-- don't look at me. It's on the page. So again-- STUDENT: Gambling and juggling. ANNE COUGHLIN: Good, good, good. Good, good, good. Good, good, good. Yeah. Yeah. I'm just saying, imagine
you're a new prosecutor or you're a defense lawyer and
your client came in and goes, it's this. Is the thing, right? So it's gambling. It's juggling? STUDENT: Yeah. ANNE COUGHLIN: What else? STUDENT: Lewd, wanton,
keepers of gambling-- ANNE COUGHLIN: Keepers. So lewd wanton, you
jumped over that. You don't think
that's an activity? Right, but keep going. What other activities? Are there any others? Some of my favorites. See, one of the things that's
fun about the statute is-- the ordinance is
that a lot of it sounds like fun like
I want to juggle like where's my wife I could
be living on her earnings. Where are my minor children
and their deep pockets? I want to be habitually
drinking while they're working. So you're right,
so it's activities. I'm sorry, I'm banging into you. What else? It punishes activities, and
we've identified some of them. And how are you going
to prove that up? You're going to bring
in witnesses who say, this character was juggling. OK. Right? So what else? STUDENT: Prohibits people
from wandering about without a purpose. ANNE COUGHLIN: Good, so
wandering is another. Wandering is another. I don't if the word strolling
is in there, loafing, words like that. What else? STUDENT: It also discusses types
of people, so lascivious people or disorderly people. ANNE COUGHLIN: Good. So it punishes activities and
it punishes kinds of people. The kinds of people that you
singled out were which ones? STUDENT: Lascivious
and disorderly. ANNE COUGHLIN: The disorderly
and the lascivious. What are the other words? Oh, habitual loafer. Right, who else? First word in the-- STUDENT: Rogue. ANNE COUGHLIN: A rogue. Right? So you can see there's
a whole range of stuff. Now, what is a rogue? No, I want to what is a rogue. Yeah? Well, yes, but that's-- you're saying that
because you read the case. OK? Which is fine. I want you to tell me what is a
rogue and how are you deciding. What methodology are you as a
human being using to decide? STUDENT: In the 1800s the
three musketeers, today-- ANNE COUGHLIN: You're I
want you to prosecute. Who wants to prosecute? What's a rogue? How are you going
to figure it out? Yeah? STUDENT: I'd say
rogue is just someone that, like, a [INAUDIBLE]. ANNE COUGHLIN: OK, so
you're saying a rogue-- OK, so where are you getting-- so where are you getting
these definitions? STUDENT: I was going to say
socially non-conforming. ANNE COUGHLIN: Socially
non-conforming. OK. Where did you get
the definition from? STUDENT: Lived experience. ANNE COUGHLIN: Lived experience. Where are you getting
these definitions from? STUDENT: Our culture. ANNE COUGHLIN: You're getting
them from your culture. So you're reading the
words and you're assigning meaning to these words. You're saying, I
know what a rogue is. It's either that
18th century guy or-- right? But what are you doing? You're defining language. What is the source? The statute gives you the words. This is the stuff
that can be punished. Lawyers decide what it means. Some of it's activities. I think juggling. I think, right? But rogue, vagabond,
where would you turn? You all were saying, oh,
it's up to the judge. Hm? STUDENT: The dictionary. ANNE COUGHLIN: The dictionary. Thank you. Did any of you look
in the dictionary? No, of course not. But you will. You will, you will. I mean, you'd be insane. If you'd read the case-- you probably haven't had
time to read the case, and if you'd read
the case you probably wouldn't have looked
in the dictionary. But that's where you go. That's what I did. I've got rogue, I've got
loafer, I've got dissolute. I've got common. It's not just a night
walker we're after, but it's a common one. A habitual. You see what I mean? So all of those words have
to be given meaning, assuming there's a lawyer there to
litigate, which there always-- sometimes there isn't. But yes, dictionaries. You're going to see
dueling dictionaries. Certainly the Supreme Court will
go to dictionaries at times. So that's the stuff, and this
is a very strange ordinance. One of the things that
you're going to learn is that typically in criminal
law we say we punish conduct. We don't punish people for
being certain kinds of people. We don't punish you for
being a drug addict. We punish you for
possessing drugs. Obviously the conduct
that's tied to the status is very closely tied to the
status, but we punish conduct. So there's a lot that's
wrong with the ordinance. I could go on but I won't. You can just see,
that's where you start. How do you assign meaning? I'm assuming that each
of you is flipping through your dictionary
cards in your head when you said culture. Right? You've absorbed from a culture
what a rogue is, right? When you get to court,
you'll rely on a dictionary. So there go. There's the ordinance. What's the purpose
of this ordinance? How did the city of
Jacksonville defend the ordinance in the United
States Supreme Court? Did it say, this is one of
the statutes of laborers? This is part of the
Elizabethan poor laws. This is designed to keep
serfs from leaving their homes and traveling throughout
the country in search of better wages. Now, Justice Douglas treats
us to a little tiny glimpse of that history. Trust me, you could read about
that for many, many hours. He gives you a little cartoon. Was that the argument that
the city of Jacksonville made? STUDENT: It was
to prevent crime. ANNE COUGHLIN: Right. Exactly. So the answer to
my question is no. The city of Jacksonville did
not say, this is a collection. This string of words is
drawn from those ancient-- or they're not ancient--
medieval statutes. Instead we have a
contemporary justification. We have a darn good reason for
doing this, and that is to? STUDENT: Prevent future crimes. ANNE COUGHLIN: How
does that work? What's the claim? That's right. They're saying we
need to keep this law. It's got a good purpose. Deters crime. How does that work? STUDENT: I think
they specifically say it to prevent if people are
doing these acts habitually, they're maybe more likely
to commit the crimes. ANNE COUGHLIN: Yeah. Something like that. If you're a rogue. Right? I mean, we haven't yet
figured out what a rogue is. If you're a vagabond,
if you're a loafer, if you're a common
night walker, a habitual loafer, if you're
someone who lives on the earnings of your wife. But you're right. The idea was we get to
nip crime in the bud. Deters crime. What? STUDENT: The implication is that
these things are not crimes. ANNE COUGHLIN: Yeah. Yeah, yeah. Yeah. Yeah, yeah, yeah. Yeah. That's right. And we have a thing that you're
going to learn about soon, and trust me, you're going
to absolutely love it. It's called attempt liability. So we already punish people
not just for completing crimes. We think we can deter crimes
by punishing people who also attempt to commit crimes. So this is even a more
nascent kind of liability. But yeah, something like that. So the idea is
these are people who are likely to commit
crimes, and if we can pull them off the street,
get them off the street, maybe slap them on
the wrist, somehow we'll be deterring
them, deterring others. Something like that. So what I want to do is
to make the best case, we can for the ordinance. I don't expect you to like it. The one question I'll have for
you at the end of the class is, what are we going
to do now that we're in the city of Jacksonville. We're the City Council
or whoever it is. Let's rewrite the statute. Let's rewrite the ordinance. But is there any good purpose
to an ordinance like this? STUDENT: It's tailored to what
they're experiencing locally. ANNE COUGHLIN: It is
tailored to what they're experiencing locally, right? So you've got that. We know our problems. And what kind of problems
might you be thinking about? Is there anything in
any of these cases, any of the cases themselves? The big question here is, to
what extent is it appropriate? This is what we call
a policy question or a normative question,
but, hey, you're the ones. You're in charge. To what extent is it
appropriate to manage what people do on the streets? Think of a street, busy
street, or an empty street. To what extent is it
appropriate for us to have laws, including criminal laws,
that regulate stuff that people do on the streets? Is there a legitimate purpose? Any at all? STUDENT: We have
second order crimes. So for instance, if you take
people off the street who-- like, co-defendant--
or co-defendant Brown had drugs on him. ANNE COUGHLIN: Yeah. Yeah. STUDENT: Whereas Justice
Douglas noted the notion of casing places for burglary. ANNE COUGHLIN: Absolutely. Absolutely. One of the most famous criminal
procedure cases, Terry v Ohio, involves activity
that's almost exactly-- have you read Terry? OK, yeah. So it involves
activity almost exactly like that which was
involved in the two men who go into the drycleaner shop. So thank you. There is some-- in this
case, you can already see evidence of some kinds of
activities that you might say, hey, we do have an interest
in some laws regulating some authority. I don't want to use the word
police because I don't know. Some of you may
be abolitionists. That's fine. The more the merrier. But there may be a role
here because our safety in the community, our safety,
our security, our ability to live in freedom
depends on being protected against lawbreakers
as well as being protected against the police. I mean, that is what I believe. That's one of the lovely parts
about being in Charlottesville. Some of the time
you just feel safer. You don't lock your car
door at the law school. Things like that. You just feel safer. So that sense of
community safety matters. So there could be legitimate
reasons for some law. Not this law, but for some law. I just want you to keep
that piece in mind. So the doctrine that
the court relies on is the void for
vagueness doctrine. The court very, very rarely-- and when I say the court, I mean
the United States Supreme Court and I mean the federal courts. Very, very rarely declare a
state law, state criminal law, to be unconstitutional. Crime definition is a matter
that's left to the locals, to local communities, to
states, to state legislators. The fact that a law
is really stupid, as we can see parts
of this appear to be archaic and
no longer applicable at all, just silly,
laughably so, that's not the reason for the
Supreme Court to get involved. The stupidity of a law does
not make it unconstitutional. You have to have a very precise
constitutional argument. So the argument
the court relies on is called void for vagueness. Very rarely used. The court does it
here, so this is a rare and a fascinating example. A statute that is
void for vagueness violates the due process clause. How so? So now the question becomes-- I want to spend a
couple of minutes because I don't have
for too much longer. What is the meaning of
the due process clause? There are two aspects of due
process, only one of which ostensibly is at
stake in this case. There is something called
procedural due process and there's something called
substantive due process. No state shall
deprive any person of life, liberty, or property
without due process of law. Here's the procedural aspect. The clause contemplates
that states are going to deprive people
of life, liberty, or property. They get to do that. But they shall not do it unless
they give you due process, which means fair procedures. So before they can take away
your life, liberty, property. And here, obviously
criminal statute, we're taking away
people's liberty and there's a fine, property. You get to do that. Yep. States can do it, but you
got to give due process. That's procedural due process. And since we're talking
about vagueness, what do you make of the phrase due process? The process that's due? I mean, nothing could
be vague, right? I mean, like, ah. And so you can immediately
see, yeah, we tolerate, maybe even endorse
a lot of vagueness. The process that is due
depends on the context. Are they taking
away your liberty? Is it a criminal case? Got to have a lot of process. You have to have trials. You have to have appeals,
and so on and so forth. Other contexts, other
kinds of hearings maybe require less, but due
process is what's required. Substantive due process? This is the aspect
of the due process clause that's at stake where? In Dobbs. Which I could have taught
you, but it's very long. It's about 200
pages, and I figured I'd let you wait for that treat
until you got to law school. But the due process
clause has been held-- up until now, at least. We're waiting to see
whether the court reverses the entire substantive
due process line of cases. Certainly some of the Justices
are prepared to do that. But in addition to affording
procedural protection, the idea is that
liberty, for example, has some kind of core meaning. There are some things to
which liberty entitles us. There are some
freedoms that the state can't take away, no matter
how much process it provides. Got it? So there's some forms
of human conduct that are so integral
to liberty, to living as a free person in our society,
that no matter how much process the state gives, it
can't take that away. And up until Dobbs, we
believed that the right to access an abortion, at least
within this particular time frame, was part of that
substantive liberty. You got it? The Supreme Court has said no. Liberty within the meaning of
the substantive due process clause does not encompass this
type of reproductive health care, and the court
has also said that it-- or at least Justice
Thomas has indicated that he is open
to arguments that say that substantive due
process doesn't protect, oh, access to contraception. The Constitution doesn't
protect gay marriage, and the Constitution does
not protect same sex sex. So you guys are
coming to law school at such an interesting time. I cannot wait to see what
you make of our world. So which of these
features of due process are at stake in Papachristou? STUDENT: I think
it's the procedure. ANNE COUGHLIN: It is procedural. And tell me why. So what is the proced-- what does the due process clause
require that this ordinance failed to provide? I just asked the right question. I don't always ask
the right questions. A little secret. Your professors
often ask the right-- wrong questions. Wrong questions. What does the ordinance fail
to provide that the due process clause requires? Anybody see? Yes? STUDENT: Fair notice that
their conduct is forbidden. ANNE COUGHLIN: Notice. Exactly. One of the most
important components of procedural due process,
the sort of fundamental thing, is notice. Before you do stuff to
people, before you take stuff away from people, before the
government takes stuff away from you, they've got
to give you notice. They've got to give you notice. They've got to
give you a hearing. They've got to tell
you, here's when you are crossing that red line. Here's when you are leaving
your law abiding home and crossing the red line
into the criminal zone, and this ordinance
doesn't do that. Why is that a problem? STUDENT: It's hard to
avoid committing crimes if you don't know that you
could be committing a crime. ANNE COUGHLIN: Right, so you
read the statute and you went, my God, I might be
a dissolute person. Right? I mean, and some of you
are thinking, well, gosh, I don't know. I might like to dress
up like a juggler. Right? Or maybe I do juggle. Right? Right, so there's the problem
of notice to citizens. People read the statute
and they go, oh-- sorry. I wasn't going to
curse, so I'll stop. They just go, oh my goodness. You know? Gosh darn. I have no idea. I am, in fact, habitually
drinking and my wife works. So hey, I better not
go out today, right? So there's that problem. Is that really a problem? Did the people of
Jacksonville, do you think-- how do you all know what's a
crime and what's not a crime? How do you know? Do you read statutes? Yeah? Sir, whoever? STUDENT: Question. How do signs like trespassing
[INAUDIBLE] that knowledge for? ANNE COUGHLIN: Oh, they help. Yeah. Like don't sit on
this park bench or you'll burn in hell, right? Something like that, right? Don't even think
about it, right? So yes, there will be-- but good for you. So what you're asking,
then-- and this is what I'm trying to get you
to think about-- is how robust is this notice concern? Because you're absolutely right. The court says this is a
problem for law abiding people, and it is. To live in a rule of law
world, you want to know. Can I wear the juggling
costume or not? And if there's a sign that says
no juggling costumes, right? But how robust must it be
there don't have to be signs? So what I'm trying to ask
you is, how do you know? Yeah? STUDENT: The problem
is that it's arbitrary. ANNE COUGHLIN: I don't
want to hear about that. I know it's arbitrary. I want to know something else. I just want to know as
a common sense notice-- I mean, the court
is relying on this, and what I'm trying to get
you to start thinking about is what reason
really matters here. Were the people of
Jacksonville-- yeah? STUDENT: I mean, they
say ignorance of the laws are an excuse, that
you don't actually have to know to be charged. ANNE COUGHLIN: No, no, no. Stop there. That's right. It's really fun. Ignorance of law is
no excuse, right? STUDENT: If it's not written
the way that the layman could understand. ANNE COUGHLIN: Right,
but I'm asking you, do lay people read statutes? STUDENT: No. ANNE COUGHLIN: No. I mean-- oh, some of you may. Right? Yeah, yeah, yeah, and
that could be the problem. Yeah? STUDENT: You know people
who've been charged for crimes, you read about it, and you-- ANNE COUGHLIN: Your
mother tells you. Right? I mean, I'm sorry. And of course, I'm immediately-- but I'm trying to think about
different kinds of mothers and different kinds
of communities. So we don't, I think
for the most part, get our notice from
reading statutes. I don't think we do. The court alludes to
business activities and it says, well, in the
area of business activities, more latitude,
more vague language is allowed because business
people, they read statutes. Right? They're up on it. Do you think it was a surprise
to the people of Jacksonville that this loitering
law was on the books? Of course not. They were being arrested
for it right and left. At least the people who were
being arrested right and left knew about it. Right? Eight people. Right? So again, I don't
mean to suggest that the notice to citizen
argument is meaningless. I'm just trying to ask you
to start reading creatively and skeptically and to
rely on your own intuitions as human beings, because you've
all been around the block more than once. You live and come from
different communities. You can talk to each other. Some of us read statutes. Not too many of us do
until we become lawyers. The notice function matters. So what's the other
part of the case? This is the part you all
wanted to get to, right? When you're talking about
subjectivity from the very beginning and arbitrary. What does the court say? Ah, somebody else. Somebody who hasn't talked. Yes, sir? STUDENT: It criminalizes
seemingly normal activities. ANNE COUGHLIN: OK. You've given the
perfect wrong answer. So I love that answer. Is that a procedural
due process problem? And what you want to say
back to me is, but you-- that would be me-- Anne said this is not a case
about substantive process. So you're right. There's a whole lot in there
where Douglas is wringing his hands about the fact that
the statute punishes innocent, innocuous, perhaps even common
behaviors for some people, including some very
rich people, people who like to hang out at golf club-- golf course or
whatever they do there. I'm not sure. Apparently they drink constantly
while their wives are working. Right? I don't know. Is that a procedural argument? STUDENT: I'm not sure. ANNE COUGHLIN: Well,
it sounds to me like it's more substantive. And that's what's
interesting about the case because what he says
is that the statute-- the ordinance, rather,
punishes good stuff, stuff that contributes to a happy life. And I don't if any
of you loaf anymore. I don't know. Do you stroll? Do you wander? No, I don't think so. Right? And that's sad. So I'm not sure-- I'm going to assign Thoreau. Go read it, and you get where
the word saunter comes from. But he's saying that these
are amenities of life. This stuff contributes
to a life that's happiness, that's rich,
and so on and so forth. But that's really a
substantive argument. In other words,
it's saying liberty should include the
ability to stroll around. It's not a due process argument. The due process argument is that
it gives too much discretion to police. There are two notice
problems here. One is fails to give
citizens notice. But that's a little bit fictive
because ignorance of the law is no excuse, and
people don't really read statutes to absorb what
it is the criminal law forbids. We get notice,
sometimes from signs, often from our community
members, but police get notice. Police are consumers of
substantive statutes. Police know what
the statutes forbid. And this statute,
ordinance, the court says is problematic
because its vagueness means that the police
get to pick and choose. It throws out a very wide
net some of the definitions are highly subjective,
very unclear. A lot of ambiguity. And the police get to decide
who annoys them, who displeases them, who's problematic. And that is a real
problem when you think about wanting to live
in a rule of law society, that you let the police decide
who it is that constitutes a rogue or a vagrant. And the court doesn't put
the equal protection case before you, but you can
see that it alludes to this because the couples,
the four that are arrested-- it's two white
women and two Black men. The court's telling
you that for a reason. It believes that the
police objected to the fact that it was seeing
interracial dating. That's why they pulled the car. Likewise, it mentions that
one of the people who's arrested on the casing case,
the pacing back and forth, was an organizer for an
African-American community group. Right? So the court is clearly-- though it doesn't surface
this for you-- concerned about racist policing. It says when you have
an ordinance that's this vague, it creates the
ability not just for arbitrary policing, like I think all the
rest of the guys at that golf course but not that golf course. I guess that was arbitrary. Was that arbitrary? But bias, that they are going to
exercise their discretion based on racist reasons or other
similarly reprehensible discriminatory reasons. So that's the crux of the case. Does it fix the problem? It helps, right? That ordinance is gone. We know that the court has said
that your statutes, your crime definitions have
to be sufficiently precise to guide police
discretion so the police don't have-- this gives them utter,
total discretion over who gets arrested
and who does not. They get to pick and choose. So one question
for you is, great. That's great. Get rid of it. Does it solve the problem? What now for police? What now for us
as a city council? Can we rewrite that
ordinance so that it is no longer void for vagueness? Sure. Cities, states, all kinds of
legislators have done that. We have second and third
generation loitering statutes. They get challenged. Some get tossed, some don't. We have to keep working
on that problem. But I want to bring
to your attention another problem that I think
could make a huge difference in some of the most
egregious cases that we've seen in recent days. I was going to say
years, but it's just-- it's days. What now for the police? The police can't pick up
Papachristou and her companions for prowling by auto, which was
held to be a form of loitering. Right? It's gone. They don't have
that power anymore. What can they do though? STUDENT: You can point to
the aspects of the driving and make it a justifiable
reason to pull over for reckless driving. ANNE COUGHLIN: Yep. What are you going to do? STUDENT: Antagonize. ANNE COUGHLIN: Hm? STUDENT: As the police or as-- ANNE COUGHLIN: Yeah, I'm sorry. You're the police. You don't have to be the police. You don't have to be,
but I'm just saying. If you imagine-- and we
don't have to assign it to individual police. What I want to know is what
are the police doing now, and they're doing
exactly what you say. They can't arrest that group
of people for prowling by auto, but what can they do? They can wait for 2 seconds, 3
seconds, 4 seconds, 5 seconds. They can follow that car and
within, I bet, 5 seconds, 10 seconds, 20
seconds, a minute, they will witness an
infraction of the traffic code. Now I've learned from
my students of color that what I just said
may be empirically false. I'm assuming that everyone
violates the traffic code all the time because
I do, all the time. Right? Once in a blue moon I get picked
up, but the police say to me, oh, you're not a threat to
anybody-- which kind of upsets me. I want to be scary, right? But I am waiting for them
to pull me and arrest me for having a hang
tag in my car, which is what they did to
a young man of color, and they shot and killed him. They pulled him, arrested
him, and he is now dead. That's heavy. But what my students
of color say to me is, oh, you violate the
traffic laws all the time because you're a white woman. We were taught by our parents,
don't even think about doing 56 and a 55. And of course, it doesn't
matter because they'll be stopped anyway. I have a whole list of cases. Tyree Nichols, the most recent. Are the traffic laws vague? Did you know this about
your traffic code? Did you know that your
traffic code allows the police to stop you for failing to
signal a turn, for having a broken tail light, for
having all these minor vehicle problems? They can pull you, and
they then get to choose. They can ticket you or
they can arrest you. Complete discretion. Total, total, total. Because as I said, 99%,
98%, some huge percentage of all drivers all the time
are committing an infraction. Are those laws vague? The reckless driving, maybe. The rest of it,
absolutely precise. Don't do 56 in a 55. Right? Couldn't be-- so what
are you going to do? You are going to convince
your legislators, your city councils, your police that
they should cut this out. They should no longer have
police in traffic enforcement. What is the point of
placing someone under arrest for a crime for which no jail
time is usually authorized? None. If we took policing out of that,
that would be a good start. STUDENT: Is there full
discretion across every traffic violation? ANNE COUGHLIN: This is
where I get to say what? Read your traffic code. But the pattern overwhelmingly
in the country-- it's starting to change
because people now realize, Sandra Bland, she
failed to signal a turn. She was placed under
arrest and committed suicide in a jail cell. I'm sorry. I know it hurts you. It hurts me to repeat these
words, but this is the reality. Why was that young
woman arrested? Why? Why was she in a
jail cell that night? Do you see what I mean? Just stop doing it. Give people a ticket. Let them go. They let me go. Why don't they let
Tyree Nichols go? So that is really, really,
really helpful, isn't it? You can make this change. You can insist that
you get police out of traffic enforcement. It won't solve all
the problems either. A lot more reforms
need to be done, and hey, I know a bunch
of you are abolitionists, but that's a place to start. So welcome to law school,
and thank you so much for your time. [APPLAUSE]
