Taking Back the Streets: Impact Litigation as Movement Law
Baher Azmy
This Article aims to reimagine impact litigation as movement law. It does so through a case study of Floyd v. City of New York, historic litigation which successfully challenged the New York Police Department’s aggressive stop and frisk policies. It documents a seminal period in the history of policing and community resistance by providing the first insider’s account of how a vibrant police accountability movement sought to leverage class action litigation to destabilize police narratives around Black criminality and significantly curtail the NYPD’s systemic program of discriminatory street encounters. It chronicles the multidimensional ways in which the litigation fed the movement and the movement fed the litigation, and how the movement ultimately utilized newfound political power to save the historic litigation outcomes from a hostile federal appellate court.
This Article proposes a theory of change in which a reimagined impact litigation can advance movement aims beyond the inherently vulnerable pursuit of judicial rights recognition in courts of law and makes an original contribution to the literature around movement lawyering by articulating concrete and replicable strategies and tactics through which the novel concept of “impact litigation as movement law” can both challenge the power of dominant political and social institutions and build the power of individuals and movements. The analysis is informed in great part through a process of oral history, drawing on interviews of numerous (but certainly not all) critical stakeholders in the Floyd process—lawyers and organizers alike—to bring the strategy, intensity, and high stakes of this fifteen-year struggle into the broader theoretical claims I seek to make.
Specifically, this Article documents how the Floyd legal team integrated community participation and expertise into the trial to further broader organizing campaigns. And it identifies five critical power-shifting strategies in the litigation that were transformational: the power of testifying; the power of watching; the power of evidence; the power of judgment; and the power of winning. Finally, this Article is a cautionary tale about the fragility of legal judgments, and a fresh and hopeful narrative about the power of mobilized movements and conscientious lawyers to achieve and protect successful litigation outcomes. Impact litigation as movement law offers a reimagined and replicable model for future efforts to challenge dominant power structures.