The issue before a federal judge in Alexandria was unusual: whether to strike certain words from a wrongful-arrest lawsuit filed by a black motorist against a white deputy sheriff. They were words that attorneys for the officer called “impertinent,” crafted to “weaponize the race of the parties” and label the deputy as racist.
Words such as “driving while black” and “contempt of cop,” for instance. And phrasing that characterized the arrest as part of a “sorry and notorious history of burdens attendant on living while black” and evidence of “unfortunate differences in how white and non-white people experience life in this country.”
Those were the words of destruction, to hear the lawyers tell it, words intended to “inflame the court” while also “inflaming the passions of the public,” at the deputy’s expense.
Ordering words stricken from a lawsuit is widely regarded as a drastic remedy for indisputably scandalous portrayals. U.S. District Judge Anthony J. Trenga indicated at the start of the hearing Friday that he had reviewed the case and began questioning the lawyers before ruling from the bench.
Motion denied. The words stay.
What had transpired during the hearing was illustrative of how a court of law reconciles vastly different perceptions of race. Orderly and thoughtfully, in stark contrast to the venue where similar kinds of “#livingwhileblack” cases are more likely to be aired — in the raucous court of public opinion.
On social media, anyone can post a verdict on the indignity of the day. But many of these racial hashtag cases involve violations of civil rights and other laws. And they should be tried in court, not just viewed on YouTube and debated on Twitter.
According to the lawsuit, a black ride-share driver from Alexandria named George Wingate was sitting in a parked car when a white Stafford County deputy sheriff, S.A. Fulford, approached and asked for his name. Wingate refused to tell him, prompting the deputy to comment on his “attitude” before eventually taking him into custody and charging him with resisting arrest and obstruction of justice.
But Wingate’s lawsuit alleges he was arrested for “contempt of cop,” a consequence that exemplifies “the risks of driving while black.”
Alexander Francuzenko, an attorney for Fulford, called the inclusion of the phrases “nothing more than a litigation tactic used to conjure up racial tensions between law enforcement and the African American community and divert the Court’s and public’s attention away from the facts of the case.”
Victor M. Glasberg, the attorney representing Wingate, noted that the lawsuit did not call the deputy a racist but highlighted the pervasiveness of racism and that many African Americans, like his client, are adversely affected by it.
“It’s the ordinariness of it, the fact that racism is so much a part of the system that some can’t see it and just act without understanding the motivation,” Glasberg told the court. “What happened to George Wingate represents ‘driving while black.’ And this motion [to strike the words], this brief, represents ‘thinking while white.’ ”
Citing footage from the dashboard cam of Fulford’s patrol car, Glasberg noted in the lawsuit that the deputy repeatedly told Wingate he was not being charged with any offense and “was not suspected of any criminal wrongdoing.” Wingate remained “polite and cooperative,” Glasberg said.
Under those circumstances, he had a right under the Fourth Amendment not to give his name, the lawsuit said.
In his motion to strike the words, Francuzenko dismissed the concept of “contempt of cop” as a fictional charge and offered another possible reason for Wingate’s arrest.
“Wingate provided Deputy Fulford with shifty and evasive answers, was parked on the side of the road at 1 o’clock in the morning, was dressed in all black, and was near an area known for recent auto part thefts,” he wrote.
As for the phrase “driving while black,” the lawyers said it didn’t apply because Wingate “was not even driving at the time.”
Wingate, who struggled with the deputy during his arrest, tried to flee and was quickly caught and jailed.
Glasberg maintains that “under Virginia law,” Wingate had a “right to resist and flee an unlawful arrest.” His case was bolstered when prosecutors decided to drop all charges.
What happens next is likely to be a motion by the deputy’s lawyers to dismiss the lawsuit, which they contend has unjustifiably labeled Fulford as “a racist sheriff’s deputy.”
Wingate, who had no criminal record until the encounter with the deputy, is seeking compensation for losing his car and job after the false arrest led to his wrongful imprisonment. The episode also caused another, potentially more difficult problem for him.
Following his release from jail, Wingate “had to explain to his young son what had happened to him and how his son must learn to deal with law enforcement excesses without compromising his integrity,” according to the lawsuit.
Money can’t fix that. But having his day in court could give his son a glimpse at what justice looks like.
To read previous columns, go to washingtonpost.com/milloy.