The thing about jail is there is nothing to do. The novelty wears off after about five minutes. My cell was maybe 10-feet long and 8-feet wide, with a toilet, a faucet, and a sink. On the right was a metal bunk bed, and on the left was a third bed. Everything was made of cold metal. The mattress was thin and hard and worn and musky.
I'd been arrested earlier that day at a Walmart in Maplewood, Missouri, about 10 miles outside of Ferguson. I was there as part of Ferguson October, a historic, inspiring, and exhausting weekend of protests against the killing of Mike Brown and the pattern of racialized police violence that spawned it. I had been engaged in this struggle for months. At this particular moment, though, I wasn't a protester or participant — I was a legal observer. But just like the nationally recognized journalists who have been arrested in Ferguson while fulfilling their professional duties, I found that no tradition of professional courtesy could save me from the urge to squelch political dissent.
I had until then never even seen the inside of a jail cell, not even for a field trip.
I am a law professor who teaches human rights law and race and the law, and I participated in Ferguson October because I couldn't look at myself in the mirror if I didn't contribute what I could to this movement taking place 10 minutes from my home. As a legal observer, I was hoping to document (and maybe, by my presence, prevent) police brutality against protesters. Local Walmarts were selected as protest sites to amplify the connection between the killing of John Crawford, which took place at a Walmart in Ohio, and the killing of Mike Brown. Both are case studies in police impunity, the criminalization of black youth, and the logical consequence of the two: police too often feel that instead of simply patrolling black and brown communities, they can go hunting in them, without punishment.
Without warning and before I could think, I was being led away with both hands behind my back.
I arrived at the Maplewood Walmart with my fellow activist and good friend Autumn Marie. She instructed me: "Go to the orange juice section. I'll meet you there." I did as told. I spent almost 10 minutes mulling over different types of orange juice while I was waiting for Autumn; the other customers must have thought that I was the most anal beverage shopper they'd ever seen. She finally arrived and gave me her phone and keys — as the legal observer, I would be able to safekeep them for her in the event that she was wrongly arrested for exercising her First Amendment rights. I took my shopping cart over to the pet food section, where the protesters had arranged to meet.
As we converged, the ten or so protesters began clapping and chanting, "Tell me what democracy looks like! This is what democracy looks like!" I stood to the side of the protesters and put on my neon green hat, which read "National Lawyers Guild Legal Observer." About four other people emerged with neon green caps, and the sudden burst of neon comforted me — at least I was not alone as an observer. I tried to keep a safe distance from the protest, as instructed, close enough so that I could see but not in a way that obstructed the demonstration. This was not as easy as it seemed. Because of the way the aisles were designed, it became difficult to see what was happening, especially as protesters marched back and forth.
Customers began gathering and taking pictures with their cell phones. The clapping and chanting continued: "Hands up! Don't shoot!" Meanwhile, the police wanted the protesters to leave. They waved their arms toward the door, and the protesters complied, making their way to the front of the store. I followed close behind. The protesters then locked arms and continued to chant. As I stood about 5 or 10 feet away, trying to not get in the way, my arm was suddenly twisted. I was being handcuffed.
Without warning and before I could think, I was led away with both hands behind my back. It was surreal. I was the first person arrested. The protesters were chanting and singing and making noise, and the police walked right past them to arrest me first. The only thing that differentiated me from a random customer standing and watching and taking pictures was my green legal observer hat. And there were four other legal observers there. The police walked right past them and arrested me. The only thing that differentiated me from the other observers was the fact that I was black.
As I was being shoved out of the Walmart, already in shock, I was met with another jolt: what seemed like a sea of maybe a hundred protesters, chanting, playing drums, and yelling "Hands up! Don't shoot!" As police shoved me into the car, they chanted louder to show support. All I could do was look up in disbelief. I had no idea that all of these people were outside.
An internet video live-streamer and fellow activist, Bassem, was shoved into the car right after me. He kept chanting along with the crowd, "Hands up! Don't shoot!," even in the car. Meanwhile my attention was focused on the handcuffs — instead of the plastic ties the police seemed to use most often, on me they had used actual metal cuffs. Each time I shifted, the cuffs seemed to get locked into an even tighter position.
We asked why we were arrested, and they said that it was for trespassing. Apparently, in some type of Kafkaesque legal mind-bender, the police had persuaded the manager to close the 24-hour Walmart. We were standing there while it was closed, so we immediately became trespassers, without having moved an inch or having entered the building with the knowledge it was closed. It actually would be a great law school exam question for my torts students this semester. (I'm hoping that they don't read this.)
When we got to the station, we were searched. I was greeted then by yet another shock: a huge cheer and people calling out "Justin!" It turns out that the holding cells were full of activists who had participated in earlier protests, and once they saw me they exploded in excitement. "You're a lawyer, how did they arrest you!?" "You've still got your green legal observer hat on, ha. That hat didn't save you did it?" "Were they any other legal observers who were arrested? I guess not, all of the others weren't black!"
The police made me take off my belt and the strings out of my shoelaces and rushed Bassem and me into a cell in the back of the jail. I was not allowed to join the holding pen where the other activists were. After a few minutes, Bassem and I were joined by local rapper Tef Poe and two other activists: the hip hop producer loose screwz and a college student from Detroit. I was really happy to see these familiar faces. All five of us were sitting in the cell, wondering what was going to happen to us. Bassem, who had been jailed before for everything from protests to traffic tickets, immediately lay down on the single bed on the opposite side of the cell from me, leaving me to sit cross-legged on a bunk. It didn't occur to me until later that he probably knew from experience that this was the best location to get.
The police persuaded the manager to close the 24-hour Walmart. We immediately became trespassers, without having moved an inch.
After our release, Tef Poe sent out a tweet that has resonated with me ever since: "I can't stress enough that the most important part about jail is having good cell mates." We talked through the night with each other, spending a good amount of time laughing — to keep from crying, I suppose. There was so much brotherhood that at times it felt like I was sitting in a small, cold, barbershop with bars. The first thing we did was make fun of the cops for forgetting to take my glasses and forgetting to take Bassem's belt. Then we laughed about the fact that here I was in jail, not only as a lawyer but as a law professor! Then we talked about protest strategies: where we would protest next, what we could do better next time.
The men in the other cells had longer jail terms in store. They were the life of the party, regaling us with prison stories and other tales of their exploits. One career prisoner claimed that he had been arrested more than 100 times, for everything from armed robbery to traffic tickets. Once word got out that I was a lawyer, I became the most popular prisoner in there. There were all sorts of supposedly hypothetical legal questions, with people asking about situations that a "friend" had gotten himself into and what he should do next.
Beyond their own cases, the other prisoners had a lot to say about race and the legal system. I write scholarship in this area and write about it often, but just like any other time when a theorist comes into contact with someone who is on the ground, I had to concede that my knowledge of the situation was more cerebral, lacking the emotions that they brought. However many books and law review articles I may read, I can never instinctively know as much about the law and what it is really about as someone who has spent years of his life in prison. What he knows that I can't know is difficult to express in words. But I felt that, at certain moments on this night, the other prisoners appealed to me from a place of brotherhood and sought to communicate that knowledge to me.
Of the many things that struck me, I remember one prisoner saying, "Not all police officers are bad. Just like any other job, there are good apples and bad apples." He had good reason to paint police with a broad brush, but instead he embraced a more empathetic, nuanced approach.
After we were taken out to the holding cells to get booked, the situation brightened. The women were in the adjoining holding cell, and we were energized by being able to talk to them. Again, the number one question was, "Justin, how did they lock you up? Weren't you a legal observer? Didn't you have your green hat on?" I didn't have a good answer for them. When my turn came, I took a mugshot and got fingerprinted.
It was at that point that the police tried to intimidate me. One of the officers told me that we were going to be headed to the county jail, and that we were not going to be released for a long time. They gave me a blanket that was so filthy that it was surely a biohazard, and told me that I should get comfortable with it because I would be spending at least one night in jail, probably more. Although I saw their intimidation tactic for what it was, I didn't make too much noise about it. I figured it would be pointless to argue with them. Instead I decided to relax and try to get some sleep. This never actually happened, thanks to the continuing questions and chatter from the prisoner in the jail cell across from me.
"Justin, how did they lock you up? Weren't you a legal observer? Didn't you have your green hat on?"
In the early hours of the morning, the police began to free the activist prisoners one by one. Each time they took another one of us away, the jail became quieter and more oppressive. Although it was only for a brief time, more and more I experienced the violent nature of being caged.
I wasn't surprised that Tef was first to get bailed out. He had a bevy of fans and supporters agitating for his release. I was surprised, though, at how desperately I wanted to be second, then third, then fourth. Every time the police walked by, all I could think about was whether I would be the next person released. I couldn't get that anticipation out of my mind. On some deep-down level, even with my knowledge to the contrary, the officer who told me to expect a long jailing and a trip to county had an effect on my psyche. In the moment, I hated myself for wanting to be next. I should have been happy for my brothers and cell mates to get free. But even now, days later, I remember more than anything that anxiety and anticipation, almost as if it were a thick, burning knot in my stomach.
Protesting is an act of hope. It's not altogether reasonable to believe that standing in a certain place, walking around in circles, chanting and clapping, can in some way create a better world. But it calls for a measure of determination to offset the inevitable fear of backlash, repression, arrest, and violence that accompanies any endeavor of speaking truth to power. I am proud of my efforts to protect the First Amendment rights of these protesters, and no attempt to criminalize this legal work will change that. Dissent makes our democracy dynamic, and in this case in particular, I share the dreams of those who protested that day and wish avidly that their hope is fulfilled.
The hope that animates this movement in Ferguson is the dream of new relationship with the police that is defined by mutual respect. The good news is that there are many ways to do that. The bad news is that any meaningful solution is going to require both the community and police to give up something they value.
For the community, it will entail giving up time and energy as a new culture of more vigorous citizen oversight of policing emerges. For the police, it will entail giving up a general culture of impunity, and being held accountable financially and professionally for excessive use of force and racial profiling in black and brown communities, perhaps for the first time in our nation's history. As much pain as these changes might bring, and as difficult as it may be to get us there, making this transition is the only viable pathway to a future of racial harmony, peace, justice, and human rights.
As I walked out of the jail early the next morning, and I was met with cheers and embraces from my friends and fellow activists, I felt changed. Even now, I have difficulty in putting this into words. But in some way I think that night in jail removed from my mind the last vestige of any thought that I would be treated differently by the police because of the content of my character. I am a lawyer and law professor. I had a neon green hat on, and I stood to the side in silence, taking pictures. But watching and pretending to be neutral did not protect me. Having my dress slacks on pulled up around my waist did not protect me. In the eyes of the police, I was one thing: a young black male.
Standing to the side in silence is not an option for me.