Introduction 636 I. Police Surveillance & Excessive Force Against Black Philadelphians 642 A. Surveillance and Over-policing of Black Activists 643 B. PPD's Over-policing and Excessive Use of Force Against Black Residents 646 C. The 52nd Street Community 650 II. The Lawsuit 652 A. The Events of May 31 652 B. The Allegations 657 III. Seeking Abolitionist Remedies 661 A. Increase Public Accountability and Transparency Around PPD Misconduct, Including Racial Profiling and Discriminatory Use of Force by the PPD 661 B. Divesting in Over-Policing & Demilitarizing the PPD 663 C. Investing in Residents in Predominantly Black Neighborhoods 667 Conclusion 671
INTRODUCTION
On May 25, 2020, Derek Chauvin, a white Minneapolis Police Department officer, murdered George Floyd, a 46-year-old Black man, by pinning Mr. Floyd to the ground with his knee on his neck for nearly nine minutes. (1) Mr. Floyd died begging for help and crying out: "I can't breathe," while three other police officers stood by watching. (2) Across the country, Americans took to the street in protest of Mr. Floyd's murder and the police killings of countless other Black people. In too many cases, police responded to protesters with excessive force and the very brutality that had led people to protest police in the first place. (3) Tear gas, pepper spray, armored tanks, rubber bullets, and other munition became the hallmarks of a militarized and inhumane response to protesters. (4)
In the wake of these horrific displays of force, over 40 lawsuits were filed nationwide that challenged police conduct at protests. (5) Most of the prayers for relief were for damages or to temporarily or permanently enjoin local police from using military-style weapons against protesters, but did not reach the larger issues of discriminatory policing of Black and Brown communities that were the basis for the protests--though not the basis for the factual allegations that gave rise to the lawsuits. (6)
Smith v. City of Philadelphia, (7) one of the lawsuits brought on behalf of residents and protesters in Philadelphia, was unique. The tragic underlying facts in that case involved not only an attack on protesters, but also a broader attack on residents and bystanders who happened to be in a predominately Black community where the protests occurred. (8) On May 31, 2020, when protesters took to the street in the 52nd and Market Street area of West Philadelphia, the Philadelphia Police (PPD) arrived en masse in armored vehicles. (9) The PPD repeatedly unleashed a variety of dangerous militarystyle munitions, including rubber bullets, tear gas, and pepper spray against protesters, residents, and bystanders throughout the neighborhood. (10) Later reports revealed that early in the day on May 31, Mayor Jim Kenney, Police Commissioner Danielle Outlaw, and other high-level city officials broadly authorized the use of "non-lethal munitions" in West Philadelphia in response to allegations of a dangerous situation and "looting" of commercial establishments. (11) But the Department's use of tear gas, rubber bullets, and other less-than-lethal munitions went far beyond the commercial corridor where businesses were located. They extended down streets that were entirely residential and where no protest activity occurred. (12)
As a result, many of the individuals who were tear gassed and subjected to police violence were not engaged in protest, but simply going about their daily activities in their neighborhood. For example, plaintiff Amelia Carter was walking down 52nd Street near her home when a gas canister landed right in front of her. (13) As the gas surrounded her, she could not breathe or see. (14) As she neared her home, gas canisters were shot down her residential street, and she was hit with tear gas again. (15) When she reached her block, she saw other injured residents, including an elderly woman who had been hit in the head by a rubber bullet, sitting on her neighbor's front steps. (16) Ms. Carter attempted to enter her home, but it was full of tear gas, forcing her to go back outside. (17) She saw armored vehicles continue firing tear gas onto residential streets, and she could hear residents yelling at the police that "kids live here" and to "go home." (18)
Because the horrific injuries alleged in the Smith v. Philadelphia complaint implicated the policing of neighborhood residents, the plaintiffs believed that a remedy needed to address not only police interactions with protesters, but also police interactions with community members more generally. Moreover, as one of the first police misconduct lawsuits brought in the midst of a national reckoning in the wake of George Floyd's killing, the timing of the lawsuit also created the opportunity to reimagine the potential for litigation--not simply to seek police reform, but to further an abolitionist movement.
Building on decades of abolitionist organizing, protesters during the summer of 2020 seized the moment and set forth public demands to end the institutions of policing and punishment as we know it. (19) In this most recent iteration of the abolitionist movement, theorists and organizers have worked to discredit widespread justifications of punishment as necessary to reduce crime. (20) They have worked to decouple associations between crime and punishment altogether, define crime as a social construct, and explain punishment and the rise of the carceral state as a product of racial capitalism, settler colonialism, and social control, among other forms of subordination. (21) Central to the abolitionist praxis is the decoupling of social responses to harm and conflict from the criminal legal system, or punishment bureaucracy, and into non-punitive, non-carceral systems of accountability and care. This project of dismantling reliance on carceral systems, racialized and gendered policing, and surveillance is accompanied by a set of positive projects. These are projects that are focused on recreating social systems, social relations, and social provisions that are not just alternatives but new ways of restructuring society. (22) Local organizers made demands to reshape the material infrastructure of a community by investing in housing, mental health care, social welfare, and education. (23) In this abolitionist future, society is organized to meet the needs of all people. It is organized to recognize and respond to structural, symbolic, and individual harms without any reliance on carceral systems of regulation, punishment, and control.
As impact litigators, the legal team in the Smith lawsuit tried to balance our responsibility to recommend a proposal that would be successful in reaching an agreement with local municipal actors, while also seizing the moment to creatively pursue our clients' demands and visions for transformative and enduring change. Our clients' demands and visions required pursuing what we term here as "abolitionist remedies." Abolitionist remedies are those that further abolitionist theoretical and political commitments, goals, and practices, but with a specific focus on non-reformist reforms that may be achieved through litigation or policy change. (24) Quoting Mariame Kaba, Daniel Berger, and Michael Stein, Dorothy Roberts writes that non-reformist reforms are "those measures that reduce the power of an oppressive system while illuminating the system's inability to solve the crises it creates." (25) These remedies are consistent with what abolitionist scholars and organizers term "non-reformist reforms" and provide a blueprint or framework for transformative social change. As Amna Akbar explains, "[t]he non-reformist reform then provides a framework for demands that will undermine the prevailing political, economic, social system from reproducing itself and make more possible a radically different political, economic, social system." (26) Akbar emphasizes that non-reformist reforms have three main components:
First, non-reformist reforms advance a radical critique and radical imagination. Reform is not the end goal; transformation is. Non- reformist reforms are "conceived not in terms of what is possible within the framework of a given system and administration, but in view of what should be made possible in terms of human needs and demands." In advancing an agenda to meet human need, non-reformist reforms advance a critique about how capitalism and the carceral state structure society for the benefit of the few, rather than the many They also posit a radical imagination for a state or society oriented toward meeting those needs. (27)
Abolitionist remedies are a version of what Akbar calls "[c]ampaigns for non-reformist reforms," that rely on "inside" and "outside" strategies, which "entail[] a combination of legal and extralegal strategies and tactics." (28) Litigation is an inside strategy, but some of the remedies from litigation can be used to support abolitionist goals. Of course, pursuing abolitionist goals through litigation comes with limitations--notably, it will not be possible to obtain all abolitionist remedies through settlement agreements or consent decrees. However, it is one inside strategy that can remove barriers to more transformative change in the future.
There are also challenges with pursuing transformative change aimed at dismantling racially oppressive legal structures through litigation. In many ways, the legal system itself is resistant to transformative change. Law reform strategies are very often at odds with what Sameer Ashar calls "deep critique," which requires "thinking beneath and beyond liberal legalist approaches to social problems." (29) Yet for those of us who represent clients who have a deep critique, like clients pursuing abolitionist strategies, zealous advocacy necessitates identifying legal strategies for pursuing remedies that are aligned with clients' transformative change goals. Zealously representing our clients required new ways of...
