Just a few days ago, Dean Shelley Broderick of the David A. Clarke School of Law not only urged students to take part in protests taking place in Baltimore, but even offered to defer exams for those who help people on the street with legal advice. The Baltimore protests are in response to the death of Freddie Gray, an African-American man who died while in police custody. The protests are just another example of the Black Lives Matter Movement that began when George Zimmerman was acquitted for the murder of Trayvon Martin and has continued with the death of other African-American men at the hands of police authority such as Michael Brown in Ferguson, Missouri and Eric Garner in New York City.

The protests have been a mix of peace and legal disorder. This may be the reason that Dean Broderick is urging students to provide legal assistance to protestors. Knowing that some protestors may find themselves in the legal justice system, it is curious how their actions will be scrutinized. The protests, like the Movement itself, has roots in legitimate racial justice issues but its course of action had been fueled by emotion. Thus, the question is whether these emotions will be viewed as a reason to find these protestors in the wrong as oppose to as justified in their actions.

In chapter entitled “Emotion versus Emotionalism in Law,” Judge Posner addresses the role emotions plays in individual decision-making as well as in the legal justice system. Judge Posner notes that:

…theorist argue that emotion is a form of cognition, not just in the obvious sense that emotional reactions are usually triggered by information built also in the sense that an emotion expresses an evaluation of the information and so may operate as a substitute for more conventional forms of reason. For example, when we react with anger to being informed of some outrage, the reaction expresses disapproval, and we might have arrived at the same place as the end point of a step-by-step reasoning process.

From this passage, a clear argument can be made that the protests, powered by frustration and anger, is the natural and logical response to the death of so many African-Americans at the hands of the police. The people of Baltimore would have protested eventually, but their emotions have caused the protests to essentially begin overnight. However, from this argument we cannot reach the conclusion that how the protests themselves have developed are logical. The Baltimore protests have also been termed the “Baltimore Riots” filled with looting and public disorder (CNN actually has two separate web pages discussing the events; one is labeled the  “Baltimore Protests” and the other is the “Baltimore Riots“). Thus, though a step-by-step reasoning process would have led to protests, the process does not necessarily lead to protests that harm the community in the process.

So if these protestors found themselves before a judge, how would their actions be viewed? At one side we can see that “[p]articular emotional reactions in particular situations can, thus, often be praised as appropriate to the situation[.]” A judge could find their actions as legitimate. However, such emotions can also be “criticized as inappropriate either because they are evoked by misinformation or because they are based on an incorrect evaluation of the situation.” The Baltimore Protests, like the protests that came before have been known to lack the full story of the event in question. For example, the death of Trayvon Martin was for a long time in essence a case of “he said – she said.” Under this circumstance, the actions of the protestors could not be viewed as justifiable by a judge.

Posner would probably take this view. Posner believes that “a number of the strongest emotions such as anger, disgust, indignation, and love, would be out-of-place because they would interfere with the problem-solving process rather than provide an efficient shortcut.” Moreover, Posner would find it difficult to condone the acts in Baltimore leading to the destruction of homes and businesses and the harm of other individuals. Thus for Posner, such acts would be found to be contrary to law and worthy of punishment.

Nevertheless, Posner would probably take emotions into consideration when imposing punishment. He states that

The cognitive element in emotion shows that when a criminal is punished more heavily because of the emotional state in which he committed the crime, we may be punishing cognition, and therefore opinion or belief, and not merely raw emotion.

Posner has continuously supported his mantra “I do not think we should punish opinions, however repugnant we may find them.” Thus, the punishment he may impose on a protestor found to be influenced by emotion may be less than the individual who purposely commits the same action with complete malice.

Unfortunately, Posner’s court room is miles away from Baltimore. How he would adjudicate a case of a such a protestor is unknown.