Helen A. Anderson, Police Stories, 111 Nw. U. L. Rev. Online 19 (2016), https://digitalcommons.law.uw.edu/faculty-articles/48
Northwestern University Law Review Online
legal writing, police and policing
As lawyers and judges know, the facts, and the stories created with those facts, make the law: “[A] case well stated is more than half argued.” The police narrative is one of the most common narratives in legal writing, simply because there are so many criminal cases, as well as numerous civil cases, involving police. For the most part, these narratives tell the familiar story of the hardworking, careful police officer in a challenging situation with dangerous criminals.
These narratives do much of the work of an appellate argument, just as Chief Justice Robert’s story about Officer Devlin makes the case that an experienced officer’s conclusion that he has just seen a drug transaction deserves the Court’s deference. The story drives the law.
Should we therefore be suspicious of these police narratives? No more than we should read any legal narrative carefully, alert to what is being emphasized and what is left out. But especially when a narrative taps into common cultural stories, it can be difficult to imagine a different version, let alone a different ending.
The general shocked reaction of many white Americans to the 2014 and 2015 videos of police shootings of unarmed black men illustrates the strength of these cultural narratives, and the need to question them. The videos suggested and gave credence to a counternarrative, in a way that verbal eyewitness testimony could not. What is true for the public at large is also true for legal writers and readers.
Recent video recordings of police encounters with the public are not the only reason to consider the power of the police narrative in judicial writing. The exonerations of numerous wrongly convicted people over the past several decades have also revealed the fallibility of the justice system, and the danger of relying too readily upon police stories. As of this writing, over 1,859 people have been exonerated since 1989. In many of these cases, police accounts of the events turned out to be incomplete or even untruthful.
My purpose in this essay, then, is to show how particular police narratives are retold in appellate decisions, and to demonstrate also the less common alternative narratives. The essay proceeds as follows: I will first describe briefly the police narrative we are familiar with from popular culture—in particular, television dramas. Next, I will examine the police narrative in appellate opinions. My review is anecdotal—I make no attempt to quantify or exhaustively survey all opinions involving police. Finally, I discuss examples of counter-narratives in judicial opinions, where people who come in contact with police are humanized or where additional context is introduced. I conclude that there is nothing wrong with telling the police story, but trouble results when the telling is automatic or not justified. Understanding the dominance of the popular heroic police narrative can perhaps weaken its grip on the writer and reader’s imagination, and make us less likely to automatically fit new facts into familiar patterns.Helen