Dominant paradigm

The underlying paradigm of different legal branches (principles, concepts, language) determines the types of behaviors addressed, the actors that can be held accountable, and the consequences a judicial victory has for the movement. French criminal law relies on a punitive paradigm that considers specific behaviors to be harmful to society and deserving of punishment. Because a guilty verdict can have serious consequences, including incarceration, criminal laws only address behaviors by individuals directly implicated in criminal behavior. By contrast, civil law rests on a compensatory paradigm. It deals with disputes between individuals or organizations, and seeks to compensate one party for the injury caused by another (there are no punitive damages in French law). As a consequence, civil law allows plaintiffs to expand the scope of responsibilities to those indirectly implicated (employers, the state), but the potential penalties are less serious. A corollary of these different paradigms is that national cultures place different symbolic values on different legal branches. In France, criminal law is widely perceived as dealing with more serious problems than civil laws, and many victims and lawyers prefer to initiate criminal lawsuits, even when the chances of winning are slimmer, because of the stronger symbolic message it sends (Reference ChappeChappe, 2019; Reference SaguySaguy, 2018).

Legal stock

The legal provisions and case law of each branch shape which aspects of a situation are considered relevant, and which are obscured. As Hermitte argues, each branch of law addresses a specific aspect of the same object or interaction, and provides a specific point of view on it (Reference HermitteHermitte, 1999). For example, in France, criminal law tackles racial inequality only when it takes the form of hate speech or intentional discrimination, whereas civil law addresses situations of differential treatment and disparate outcomes. For social movements, this means that the branch they mobilize determines how the problem gets defined, both in court and in the media coverage of the case.

Procedural and evidentiary rules

The procedural and evidentiary rules of different branches of law determine who has access to courts, and how evidence about the social problem is produced and presented in court (Reference LaugerudLaugerud, 2020; Reference ValverdeValverde, 2003). As a result, mobilizing different branches provides different possibilities for activists to uncover facts that substantiate their claims, and to present them in legal proceedings. In criminal law, allegations are investigated by the police under the supervision of the prosecution or an investigative judge. Prosecutors act as gatekeepers by deciding on indictment and charges. In civil disputes on the other hand, each party presents evidence to support their claims and there is no prosecutor leading the investigations. Thus, for social movements, launching criminal law claims gives them little power over the procedure, but the state-led investigation can be helpful in revealing information that would not otherwise be available to them. Launching civil law claims means the plaintiffs have more control over initiating the procedure and over the kind of evidence they provide, but requires that they have the resources to produce relevant evidence.

This paper develops this conceptual framework in a civil law country, but the three characteristics of legal branches can provide a useful starting point to examine how the law's distinct branches matter for social movements in common law countries, too.

Discrimination in criminal law: Intentional and explicit racial bias

The term “discrimination” first appeared in a 1972 law, enacted to align French law with the International Convention on the Elimination of All Forms of Racial Discrimination. The law criminalized verbal expressions of racism (incitement to racial hatred, racist insults, racial defamation) as well as racial discrimination, defined as the intentional refusal to grant a right, a good, or a service to a person on grounds of their race or ethnicity.Footnote ⁵ Despite the fact that political debates at the time centered on the issue of racist violence, and despite the fact that the international convention requires states to criminalize acts of violence against people on grounds of their race, parliamentarians refrained from criminalizing racist violence (Reference BrahimBrahim, 2020).

In the 1970s and 1980s, a stark increase in racist attacks against North African migrant workers claimed dozens of lives (Reference GiudiceGiudice, 1992). Antiracist mobilizations demanded stronger protections against racist violence and an end to impunity (Reference HajjatHajjat, 2013). Over the next two decades, Parliamentarians passed legislative changes that expanded the criminalization of racist speech, but they consistently rejected demands to make racist violence a specific offense, arguing that it would go against the universalist ethos of criminal law (Reference BrahimBrahim, 2020). It was not until 2003 that legislators created an aggravating circumstance for crimes committed “on grounds of race or ethnicity.” According to the law, for a crime to be considered to have a “racial characteristic,” it must be committed on grounds of the victim's race, and the crime must have been preceded, accompanied or followed by verbal or written expressions of racism.Footnote ⁶ Thus, criminal law does not tackle racist violence, only racist speech accompanying acts of violence. This has meant that efforts to use criminal law to challenge racial discrimination have only succeeded when the discrimination was explicit, for example when job ads specified “no Blacks” (Reference ChappeChappe, 2019). In the absence of such explicit evidence, challenging discrimination in criminal courts remained impossible.

Discrimination in civil law: Differential treatment and disparate impact

The 2000s were a turning point for antidiscrimination legislation. The European Union adopted two antidiscrimination directives which were binding to member states: the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). In 2001 and 2008, France enacted two laws to transpose these directives. They banned discrimination on the basis of race and gender (among other criteria) in employment, education, health, and access to goods and services.Footnote ⁷ These legal reforms profoundly transformed antidiscrimination legislation in the country.

In the new laws, discrimination was expanded to include both direct discrimination (a difference of treatment on the basis of race) and indirect discrimination (measures that appear neutral but have a disproportionate impact on a racial group). This meant that the law tackled, for the first time, acts that go beyond intentional or explicitly racist behaviors. Moreover, the laws defined discrimination as a civil tort rather than a crime, and thus opened the door for holding accountable people that may have indirectly caused the discriminatory behavior, such as employers. The law also introduced a shared burden of proof: when alleging discrimination, the claimant must provide evidence to establish a “presumption of discrimination,” after which the burden of proof switches to the respondent who must prove that the behavior was not discriminatory.

The civil antidiscrimination laws of the 2000s created new opportunities and led to important advances in the struggle against sex discrimination and union discrimination in the workplace (Reference Bereni, Debauche, Latour and RevillardBereni et al., 2010; Reference ChappeChappe, 2019). However, they remained difficult to use to challenge racialized policing. The laws' scope of application was limited to employment, social protection, health, social benefits, education, and access to goods and services—policing practices were not included. In addition, France's strictly anti-racialist ideology and the legal ban on the collection of racial and ethnic data represented significant obstacles for racial discrimination claims, since evidence of racial disparities was difficult to produce (Reference CalvèsCalvès, 2002; Reference SimonSimon, 2015; Reference Simon and Stavo-DebaugeSimon & Stavo-Debauge, 2004).

Importantly, the laws' conception of discrimination implicitly excluded acts of violence or harassment, limiting the civil law definition of discrimination to behaviors such as denying someone a right or blocking their access to goods or services. The implicit differentiation between violence (to be dealt with through criminal law) and discrimination (to be dealt with through civil law) was made clear in debates over sexual harassment laws. Sexual harassment was introduced in French law as an act of violence punishable under criminal law (Reference SaguySaguy, 2003). When new European laws required member states to define sexual harassment as a form of discrimination, French legislators were reluctant to comply, and did so with significant delay under the pressure of sanctions (Reference SaguySaguy, 2018). Today in France, sex discrimination remains the only kind of discrimination for which acts of violence are explicitly included in the civil law definition of discrimination.

Thus, French law maintains a separation between violence on one hand, and racial discrimination on the other. In criminal law, acts of violence are addressed but racial discrimination is only taken into account if the perpetrator expresses a racist motive. Civil laws tackle direct and indirect discrimination, but French legislators have been reluctant to include acts of violence within the definition of discrimination. What is more, the dominant view among legal professionals is that, when faced with acts of violence, filing a criminal lawsuit is more appropriate than arguing discrimination in a civil court. Reference SaguySaguy (2018) finds this to be true for sexual harassment claims. My interviews with lawyers working on police violence cases show a similar trend.

Criminal proceedings: Tackling illegitimate violence, one bad apple at a time

When someone dies during a police intervention, the criminal proceedings aim to respond to two questions: was the officer's use of force legitimate? did it cause the death? Criminal law's punitive paradigm means that lawsuits consider only the responsibility of individual officers involved in the death, not that of the institution or the state. The provisions of the French penal code stipulate the conditions under which police can use lethal force (force must be strictly necessary and proportionate to respond to an immediate threat of bodily harm), but they do not include race as a central consideration. As discussed above, criminal law only tackles racial discrimination as an aggravating circumstance, and only if there is explicit evidence of the offender's racist motive. Moreover, victims have little control over the investigation process; they are only allowed to make requests to the investigative judge, but the magistrates retain full discretion to accept or reject these requests.

Within these constraints, all the lawyers I interviewed avoided bringing up race in criminal cases alleging police violence (with the exception of lawyers who developed the third litigation strategy I examine below). In the Truth and Justice movement, lawyers mostly play a support role, helping victims' families navigate the criminal proceedings, but otherwise intervening little in political organizing or the development of movement discourse. Aiming to maximize the chances of an indictment and conviction, they develop arguments that stick closely to the legal provisions and procedural rules of criminal proceedings.

When I asked criminal lawyers whether they ever bring up race in police violence cases, all gave a version of the answer “no, because there is no evidence.” To ensure they are taken seriously, lawyers told me, they avoid bringing up racial discrimination unless they have “tangible evidence,” such as proof of verbal expressions of a racist motive by the officer as he was using force. In cases of police killings, such proof virtually never exists, both because most officers are careful not to be caught shouting racist slurs, and because prosecutors and investigative judges do not typically investigate whether the crime was racially motivated. Without proof, mentioning that race may have played a role would make them lose credibility. “Either you have concrete proof, or it doesn't exist,” one lawyer explained, “every small battle counts, and the battles you can't win, you shouldn't fight.”Footnote ⁸

Even if lawyers could point to a broader pattern of racialized police violence within which the specific incident at hand occurred, they refrained from making this argument in criminal courts. One lawyer explained; “criminal law allows you to address acts of violence, of drug trafficking, but… not a policy, a discriminatory action, except if the officer was particularly careless, did something very explicit.”Footnote ⁹ In other words, criminal law seizes facts only one interaction at a time but cannot tackle patterns of practice like institutional discrimination.

Moreover, virtually all the lawyers I spoke to were careful to stay in line with the dominant legal culture, which considers discrimination as a separate, and less serious, legal problem than violence. Some endorsed this view and avoided bringing up discrimination because they viewed it as unimportant compared to the more serious question of lethal violence. For example, an immigration lawyer who represented several families of victims of police killings explained that in cases of police violence, especially lethal violence, the question of discrimination was secondary:

Other lawyers were sympathetic to families' and activists' arguments about the racialized nature of police violence, but they still avoided bringing up race for fear of losing credibility. Racial discrimination, they argued, is too politically loaded, and mentioning it in front of a judge might backfire. In criminal proceedings, it might be perceived as political talk rather than legal talk and would risk jeopardizing the whole defense.

The non-White lawyers I spoke to mentioned a further obstacle to raising arguments of discrimination in criminal proceedings: lawyers of color risk being delegitimized—and their clients penalized—if judges perceived them as going against the law's universalist ethos. A Black male lawyer explained: “Discrimination is sensitive because you shouldn't give the impression that you're screaming ‘discrimination’ all the time, otherwise, you lose credibility.”Footnote ¹¹ Echoing this, a mixed-race female told me that it is particularly difficult for non-White lawyers to claim racial discrimination in front of judges who are virtually all White, adding:

In sum, by and large, lawyers who represent victims of police violence avoided mentioning race and racial discrimination in criminal proceedings for police brutality and focused solely on the legitimacy of police use of force. The dominant legal culture downplaying discrimination as unimportant in cases of violence, the restrictive definition of a racist motive, and the evidentiary rules in criminal law, meant that lawyers avoided mentioning race to maximize the chances of an indictment.

Introducing race through expert testimonies at trial

The vast majority of cases of police killings end with a non-indictment decision.Footnote ¹³ Trials are rare, so when they happen, activists seek to use them as a political platform to garner media attention around their struggle and legitimize their claims. To do this, they introduce sociologists and activists as expert witnesses.

In 2017, the Appeals trial of the policeman who shot and killed Amine Bentounsi provided one of those rare opportunities (Reference PregnolatoPregnolato, 2020). On April 21, 2012, four officers sought to arrest the 28-year-old of Tunisian origin after he failed to return to prison from a furlough. During the foot-chase, police officer Damien Sabounjian shot Amine Bentounsi in the back. According to the shooter, Amine had pointed a gun at him, so he fired in self-defense, but by the time the bullet reached him, Amine had turned around. However, six witnesses testified that the victim had never turned to face the officer and was running away when he was shot.

The five-day trial focused on adjudicating whether the policeman was acting in self-defense when he shot the victim. The question of racial bias was largely absent from the debates, until the fourth day of the trial, when the court heard the testimonies of four expert witnesses requested by the victim's family. The first was Farid el Yamni, whose brother Wissam was killed by the police in 2012. The victim-turned-activist spoke about the investigations into his brother's death and the routine denial of justice his and other families face. Then, antiracist activist Omar Slaouti spoke about several cases of police killings dismissed without an indictment, and about the rampant racism within police forces, evidenced by their high rates of voting for the far-right party. Next came Nacira Guenif-Souilamas, a sociologist of gender, ethnicity, and immigration, who spoke about the normalization of racialized violence in France. She explained that her research shows that “the police want to affirm their authority over a population that doesn't have the benefit of the law”. She ended her statement by addressing the jury and telling them that their decision “largely exceeds the case of the accused officer [and] resonates with a broader situation of injustice suffered by a population stigmatized because of its origins.” Lastly, Michel Kokoreff, an urban sociologist, spoke about the endemic nature of racial discrimination in France, not just in policing but also in schools, social housing policies, the judiciary, and the media.Footnote ¹⁴ In short, these expert statements framed police killings as a routine practice of the French police; they denounced the widespread impunity granted to police officers who kill, and affirmed that police brutality is a symptom of systemic racism in France.

In court, legal professionals ignored these statements. The activists and sociologists were the only witnesses for whom no judge, jury member, lawyer, or prosecutor had any question. I later learned that the presiding judge had asked everyone to refrain from asking them any question so as not to “waste time,” a request with which everyone complied. In their concluding arguments, all the legal professionals instructed the jury to ignore these statements. The prosecutor called on the jury to find the officer guilty, but added “this trial is not a political forum or a scholarly conference, and it's not a rally or a protest; it is a meeting of jurors who must decide on the fate of [the accused].” The victim's lawyer, too, told the jury that they should not listen to those within the police calling for a presumption of self-defense, nor to those “who want a conviction for the cause against police brutality.”Footnote ¹⁵ Thus, even though activists managed to introduce statements about the role race in policing at the criminal trial, jurors were instructed by legal professionals on all sides of the dispute to ignore these statements.

What is more, when Amal Bentounsi, the victim's sister and by then a prominent figure of the Truth and Justice movement, took the stand, the presiding judge did not allow her to speak about her brother's experiences with police abuse. When she started sharing details about the abuse and mistreatment he suffered at the hands of the police and in prison, the presiding judge interrupted her saying: “I don't want us to waste time on this.” He advised her to stick to her role as a civil party (victim), and to talk about how it feels to have lost him. Amal insisted that this story is important to understand her brother's trajectory, but the president interrupted her again and said firmly: “we are not here to put the police on trial!” (on n'est pas là pour faire le procès de la police). She could not complete the statement she had prepared.

At the end of the week-long trial, the jury convicted the officer for unintentional homicide and the court sentenced him to a suspended prison sentence. Without surprise, the court did not consider whether race had played a role in the crime.

Activists were under no illusions that the expert statements might be considered relevant for the court's decision, but they sought to use the highly publicized trial as a loudspeaker to promote their claims in the media coverage of the case. However, their institutional and structural analysis did not transfer in the media coverage of the trial. In March 2017, 23 articles were published about the trial in Le Monde (center), Le Figaro (right), Liberation (left), and Le Parisien (largest local paper). The articles covered, at length, the victim's criminal history,Footnote ¹⁶ the defendant's personality,Footnote ¹⁷ the contradictions between his statements and those of the witnesses, as well as the police protests that followed the guilty verdict. None of the 23 articles mentioned any of the sociologists or activists' statements, and only two covered Amal Bentounsi's attempt to tell the story of her brother's trajectory, both of which highlighted the judge's admonishment. Le Monde even used the president's reprimand as the title of its article, “This is not the trial of the police.”Footnote ¹⁸

In sum, in criminal law, the dominant paradigm, legal provisions, and procedural and evidentiary standards, focus the attention on individual officers' responsibility for excessive use of force, but sideline considerations of racial discrimination. As a result, criminal lawyers representing victims are reluctant to bring up race. When activists attempted to introduce an analysis of the role of race in a police violence trial through expert witnesses, judges, prosecutors, lawyers, and even the media, silenced or ignored these statements.

Civil law: Suing the state for discriminatory stops

In the mid-2000s, OSJI launched a racial profiling program in France; they established partnerships with French organizations and built a coalition engaged in political lobbying, media campaigns, and litigation. In the early 2010s, OSJI started elaborating what they call a “strategic litigation” case, with the goal of expanding legal opportunities for victims of racial profiling. To build the case, OSJI mandated Felix de Belloy, a criminal lawyer, and Slim Ben Achour, an employment lawyer specialized in antidiscrimination law.

Ben Achour and de Belloy suggested a litigation strategy based on civil law rather than criminal law. Mobilizing civil law presented several advantages, they argued. It allowed them to rely on a broader definition of discrimination than in criminal law: civil law bans differential treatment, regardless of an intention to discriminate. Even though the scope of application of civil antidiscrimination laws does not include police activity, they developed the argument that equality and non-discrimination is an overarching principle in international, European, and French constitutional law, and therefore nondiscrimination rules must apply to policing practices, too. Mobilizing civil law also allowed them to sue the state, rather than individual officers, based on provisions stipulating that the state is responsible for misconduct by public employees. Discrimination being a form of misconduct (faute), the state is liable for discrimination by its agents, they reasoned. This would also help the campaign frame the issue as an institutional problem rather than a matter of “bad apples.”

Another key advantage of mobilizing civil law was the opportunity to rely on more favorable evidentiary rules. As discussed above, civil law proceedings provide plaintiffs with more control over the fact-finding process, as they can introduce their own evidence. What is more, European and French laws stipulate that, in civil discrimination cases, the burden of proof is shared between the claimant and defendant: plaintiffs must present facts establishing a “presumption of discrimination,” (evidence suggesting differential treatment), and it is then the state's responsibility to prove that the practice was not discriminatory or based on objective factors. If, as they hoped, the court endorsed their argument that civil antidiscrimination laws apply to policing practices, then plaintiffs would be able to benefit from a shared burden of proof.

Still, even with more favorable evidentiary rules, the litigation team faced a challenge: French police keep no systematic records of police stops, so plaintiffs needed to come up with evidence that a stop happened and that it should be presumed discriminatory, without relying on police records. After much thought, the litigation team settled on two forms of evidence. First, each plaintiff provided an affidavit (attestation), written by a witness to the stop, testifying that the plaintiff was stopped for no apparent reason. As Ben Achour explained, in civil law, affidavits are one of the main modes of proof; “in [civil] law, the affidavit is deemed truthful… the citizen is deemed to be in good faith, unless you prove that he lied.”Footnote ¹⁹ Affidavits were both a credible form of evidence in civil courts, and easy to produce, as long as someone had witnessed the stop. Second, the plaintiffs presented scientific research demonstrating that police stops disproportionately target racial minorities. In 2009, OSJI had published France's first study quantifying racial disparities in police stops, in collaboration with renowned French scholars. The study, which found that Arabs and Blacks are eight and six times more likely to be stopped by the police than Whites (Open Society Justice Initiative, 2009),Footnote ²⁰ had been widely recognized, by media and politicians, as credible (Reference BoutrosBoutros, 2020). The lawyers hoped that, combined, witness affidavits and the scientific study would be sufficient to establish a presumption of discrimination. It would then be up to the state to prove that the contested stops were not discriminatory. Since the police keep no written records of identity checks, the lawyers believed that the state would struggle to produce evidence that the stops were based on objective, non-discriminatory factors.

Based on this legal strategy, the litigation team selected 13 plaintiffs, all of them Black and Arab men who had been stopped for no apparent reason in various French cities, in the presence of a witness willing to write an affidavit (often a person stopped alongside them). As de Belloy summarized, they were looking for “people who had the characteristic of being Black or Arab, who were stopped without any reason while they were doing a mundane and absolutely normal activity.” He added that the plaintiffs would ideally have no criminal record because “we started with the assumption that the state would be unable to justify why they had been stopped.”Footnote ²¹ For this reason, they also limited the plaintiffs to people whose stop was a “simple stop,” that is, involved no finding of an offense, no detention for identity verification, and no violence.Footnote ²² In 2012, the 13 plaintiffs field a lawsuit suing the state for discriminatory police stops.

Symbolic victory: The state is liable for discriminatory stops

By 2016, the case had gone all the way to France's highest court. In what was widely considered a historic decision, the Court of Cassation condemned the state for “grievous fault” (faute lourde) in three of the 13 stops, for which the court concluded that they were “conducted based on criteria stemming from physical characteristics associated with an origin, real or imagined, without any prior objective justification.”Footnote ²³ The ruling also endorsed the shared burden of proof; to contest a discriminatory stop, the court explained, plaintiffs “must bring elements of fact that show a difference of treatment and constitute a presumption of discrimination,” and then “the administration must prove, either the absence of a difference of treatment, or that this difference is justified by objective elements other than discrimination.”Footnote ²⁴ The state was ordered to pay 1500 euros in compensation to each of the victims. With this ruling, the Court of Cassation created a new cause of action for victims of discriminatory policing, expanding the legal opportunities available to contest racial profiling.

This judicial victory came on the heels of years of political organizing that brought the issue of racial profiling to the forefront of political debates (Reference BoutrosBoutros, 2020). Despite the government's initial promise to address the issue, strong resistance from police unions blocked all reform proposals. In this context, the court's decision sent a strong political message. Not only did it confirm the growing consensus that racial profiling is a reality in France, it also signaled that it is a problem that the state (and not just individual officers) is accountable for.

The decision was not as widely covered in the media as the activists hoped, in large part because of its unfortunate timing: the ruling was released on the day of Donald Trump's election in the United States. Nevertheless, the coverage from mainstream media unanimously called it a historic decision that set a judicial precedent (qui fait jurisprudence). The press emphasized the legal rule established by the court: “an identity check based on physical characteristics associated to real or assumed origins, without prior objective justification, is discriminatory and constitutes a grievous fault.”Footnote ²⁵ Journalists also emphasized the adjusted burden of proof, and speculated that this decision “could lead to much litigation.”Footnote ²⁶ To Ben Achour, the ruling significantly strengthened the credibility of the campaign's claims. “I think we won politically, in the sense that it's not a matter for debate anymore. Of course in some circles, on the far right, they will find justifications for racial profiling, but everybody now agrees that Blacks and Arabs are disproportionately stopped.”Footnote ²⁷

However, the symbolic strength of the ruling obscured the narrow nature of the cause of action it opened. The court restricted the kind of evidence plaintiffs need to establish a presumption of discrimination, while adopting an expansive understanding of the evidence the state can present to counter discrimination claims. In the three cases where the court ruled the stop discriminatory, the witness was an activist who testified that he had watched the police patrol for an hour and a half in a racially mixed space, during which they stopped only young Arab or Black men, none of whom were arrested. In other cases, the court found that a presumption of discrimination was not established because of the absence of evidence that officers were stopping people of color exclusively when the contested stop happened. Thus, although there are no data in France about the racial composition of public spaces, the court implicitly required that plaintiffs prove that, in the time and space of the contested stop, only people of color were stopped, while white people who were behaving in the same way, were not. This implicit requirement of white comparators signals that “there is still an underlying requirement to prove intentionality,” to borrow the words of an antidiscrimination law specialist.Footnote ²⁸

Further, the court endorsed the state's argument that if the police stop is conducted in a “sensitive” area, this is sufficient to prove the stop was based on objective factors. For example, the stops of two young Arab men who were sitting in front of their building talking in the suburb of Lyon, and that of a Black man who was stopped as he came out of his building, were not deemed discriminatory because the state argued that they took place in a sensitive neighborhood. In this way, the court excluded whole territories, vaguely defined as “sensitive” (code for low-income) from the protection against discriminatory stops. These restrictions meant that, since the 2016 ruling, few people succeeded in holding the state accountable for discriminatory stops.

In sum, mobilizing civil laws allowed activists to open new judicial avenues for considering the role of race in policing. Thanks to the more expansive definition of discrimination in civil law, to more favorable evidentiary rules, and the campaign's ability to produce and present evidence suggesting racial discrimination, activists succeeded in obtaining an important symbolic victory from France's highest court, which signaled the state's responsibility for racial profiling. While their strategy for this case intentionally avoided bringing up issues of police violence, the judicial victory opened new legal possibilities for challenging racialized police violence, which the same group of lawyers used in the case I discuss next.

Criminal lawsuit: From discrete incidents to routine, repeated practices

When they agreed to support the teenagers, Ben Achour and de Belloy suggested launching a criminal lawsuit. Despite the limitations of criminal law in tackling racialized police violence, they believed that the symbolic weight of a criminal lawsuit was the best way to garner attention around the Tigers' practices and achieve change. Ben Achour explained:

To create enough public scrutiny on the Tigers brigade and to pressure investigators to stop dismissing the teenagers' allegations without investigation, the litigation team prepared a collective complaint. After months collecting evidence (victim and witness testimonies, videos, photos, medical records), in December 2015, they filed a lawsuit in which 18 plaintiffs accused 11 police officers of 44 counts of assault, sexual assault, arbitrary detention, and discrimination, over the span of 3 years (2013–2015).

Thanks to the collective nature of the complaint, to the large number of allegations, and to the media attention the organizers managed to draw around the complaint, the police inspection services (IGPN) conducted an uncharacteristically thorough investigation. In 2017, the prosecution referred four officers to trial for three incidents of physical assault, and dismissed the other allegations for insufficient evidence. While the trial covered only a fraction of the facts alleged in the complaint, the investigation file provided activists with a trove of usually inaccessible police records, which revealed that the Tigers' practices were part of an institutional policy to systematically “expel undesirables” (évincer les indésirables) from public spaces. The Tigers brigade received daily instructions to expel undesirables from public spaces, even when they had committed no offense or incivility (Reference BoutrosBoutros, 2018). The term “undesirables” was not defined, but in practice, it referred to young men of color from low-income backgrounds or homeless persons.

The local organizers took advantage of having their day in court to draw media attention to these policies and to the racialized harassment practices they fostered. In preparation for the trial hearing in February 2018, some elements of the investigation file were leaked to the press, including records showing the institutional policy of expelling undesirables, as well as a letter that the prosecutor's office sent to the head of the police station, deploring “serious breaches in the procedures of police detention,” and warning that this could lead to criminal proceedings for arbitrary detention.Footnote ³⁰ Based on these documents, mainstream media outlets noted the police's “routine interventions to remove undesirables”Footnote ³¹ and the institutional strategy to use stop, search, and detention to expel individuals.Footnote ³² Mainstream outlets described the allegations as “daily and brutal harassment” (Le Monde)Footnote ³³ and “brutal police harassment” (France Info).Footnote ³⁴

The investigation file also included video excerpts from a body-camera worn by one of the policewomen in the Tigers brigade. The camera was switched on and off at the police's discretion, and the footage does not show physical violence, but it shows officers repeatedly stopping young men that they know and call by name, systematically frisking and searching them, and systematically refusing to give a motive for the stop. This footage was leaked to two national newspapers, Le Monde and Mediapart, each of which released excerpts of the footage, emphasizing the “unprecedented” nature of such images, and their revealing of “routine police harassment.”Footnote ³⁵

Thus, although the vast majority of allegations of police abuse never made it to trial, the organizers used the records uncovered in the criminal investigation to promote, in the mainstream media, a narrative emphasizing the routine, institutionalized nature of police discrimination and brutality, which they described as police harassment. This helped activists shape the media coverage away from the usual narrative of an isolated incident and toward a discussion of the repeated and collective nature of police abuses.

During the trial in 2018, the debates focused on the legitimacy of police use of force, with judges and prosecutors giving little attention to the allegations of discrimination. However, in a break from the usual practice of criminal lawyers in cases of police brutality, the victims' lawyers decided to bring up racial discrimination in their oral arguments. While they knew that this was unlikely to influence the judicial outcome without proof of explicit racist speech, they made what they called a “political decision” and argued that the repeated stops, violence, and arbitrary detention that the plaintiffs suffered were part of a discriminatory pattern of practice.

While in police violence cases, judges and prosecutors generally dismiss claims of racism and discrimination as “political” (see above), in this case the prosecutors made the unusual decision to spend half of their time during oral arguments responding to claims of discrimination. In her concluding arguments, the prosecutor called on the court to find the officers guilty, but said that she “cannot accept to hear that this is the trial of a group of racist and violent police officers who on a daily basis stop young innocents.” She recognized that racial profiling is “a reality that no one is denying,” but insisted, “this is not the reality of this case.” In a somewhat circular argument, she claimed that the plaintiffs were not innocent victims since “their names are included in numerous police records that show that they are subjected to stops and police detention, either because there is a noise complaint, or because of spit, graffiti, or fireworks, or because the police unit received instructions to keep an eye particularly on this area.” Without responding to the claim that the police stopped the teenagers regardless of their behavior, the prosecutor insisted: “there is a context in this neighborhood that justified a police presence,” adding “who wants to live in a place where the youth smoke joints in building entrances, listen to loud music, and do motorcycle street racing?”Footnote ³⁶ Her statement used coded racialized images of “youth” (code for Black and Arab boys from low-income families) ruining the quality of life of “residents” (code for White middle-class families). The prosecutor thus endorsed the police officers' arguments that they were justified in stopping, frisking, and detaining any and all young men of color hanging out in public spaces because some residents complained that some of them were loud or committed incivilities.

Hence, the strategy of launching a collective complaint about multiple instances of police abuse, allowed activists to overcome the usual silencing of allegations of racism in criminal trials of police violence, and to pressure the prosecution to articulate a response. While the court did not convict any of the officers for discrimination, the organizers successfully introduced a discussion of the role of race in police violence in criminal courts, something that was unprecedented.

The Court of First Instance condemned three of the officers for aggravated assault, a ruling that the Court of Appeal reversed in 2020. However, this was not the end of this case. Lawyers and activists launched a second lawsuit, based on the same facts, but in civil law.

Civil lawsuit: From intentional to systemic discrimination

Shortly after gaining access to the investigation file, the lawyers started working on a civil lawsuit against the state, arguing that the practices of the Tigers brigade constitute “discriminatory harassment” and “systemic discrimination.” As one lawyer noted,

The innovation of this lawsuit, which was filed in June 2019, was to use the police records uncovered in a criminal investigation, as evidence in a civil lawsuit against the state. To support the claim of systemic discrimination, the complaint included, in addition to the victim and witness testimonies, police records describing the policy of “expelling undesirables,” intervention records showing police routinely expelling “undesirables” who were committing no offenses, and body-camera footage showing systematic frisks and searches during stops. The plaintiffs also added statistical studies showing wide racial disparities in police stops in France, as well as multiple affidavits written by white residents of the neighborhood testifying that the police never stop them.

This evidence allowed the lawyers to introduce new legal arguments in court. As we saw above, criminal cases for police misconduct typically ask whether discrete incidents of use of force were legitimate, and the civil lawsuit against racial profiling asked if specific identity checks were discriminatory. By contrast, this lawsuit asked whether the cumulative effect of individual practices, institutional policies, and interinstitutional relations, created a situation of systemic discrimination. The complaint described “a situation of cumulative and dynamic inequality resulting from the interaction of practices, decisions, individual or institutional behaviors, which have intentional or unintentional prejudicial effects on the group targeted.”Footnote ³⁸ In other words, the police records allowed activists to expand the usual focus on discrete incidents and to introduce a legal claim about discriminatory policies and patterns of practice.

In its 2020 decision, the Paris Court of First Instance condemned the state for five instances of physical violence for which medical certificates and several witness testimonies corroborated the plaintiffs' allegations, as well as for five unlawful stops based on procedural errors (e.g., failing to record a legal motive for detention). However, the judges ruled that there was insufficient evidence to prove discrimination.Footnote ³⁹

In line with the Court of Cassation's 2016 ruling, the court considered whether the evidence plaintiffs presented established a presumption of discrimination. It ruled that general statistics demonstrating racial disparities in police stops are insufficient, on their own, to establish a presumption of discrimination. Further, it considered affidavits by White residents irrelevant because they did not describe the behavior of these residents, noting “to establish a difference of treatment, one must demonstrate that, the behavior being equal, only the plaintiffs are stopped.” In other words, it followed the Court of Cassation's requirement that the plaintiff provide evidence of a relevant comparator, and prove that, in the time and space when the plaintiffs were stopped, only people of color were stopped despite the fact that there were Whites behaving in the same way.

More significantly, the court argued that the policy of “evicting undesirables” does not constitute discrimination.

Despite acknowledging a policy of “securitization against the presence of youth” in public spaces, and admitting that “the implementation of this policy leads to irregularities or unlawful behaviors by the police,” the court determined that “this does not indicate a discriminatory connotation.” Having thus rejected every piece of evidence, the court concluded “given that discrimination is not established for each incident taken in isolation, it cannot be established in a global manner, whether through the existence of a phenomenon of discriminatory harassment or of systemic discrimination.”Footnote ⁴⁰

It is perhaps unsurprising that the lowest court refrained from recognizing “systemic discrimination,” a concept for which there was no precedent in France's highest courts, but its detailed assessment of the evidence signaled two important advances: it endorsed the admissibility, in a civil lawsuit, of police records uncovered in a criminal investigation, and it accepted “systemic discrimination” as a valid legal claim.

In the media, this case helped the movement highlight the problem as police harassment and systemic discrimination. In May 2020, before the court's hearing, the state-appointed Rights Defender published a highly publicized opinion on the case, in which he concluded that the practices in this police district constituted “systemic discrimination.” He wrote, “taken together, the facts establish the existence of discriminatory harassment, in that this practice of “eviction” and the daily experience it imposes on the young people creates an intimidating, hostile, degrading, humiliating, and offensive environment.”Footnote ⁴¹ The watchdog's appropriation of terms such as systemic discrimination and discriminatory harassment suggests that activists' understanding of policing as racialized violence is slowly gaining ground in the public and political arena.

In sum, the strategy of combining criminal and civil lawsuits allowed activists and lawyers to overcome some of the difficulties of mobilizing the law to contest racialized police violence. Launching a collective criminal lawsuit based on multiple police interactions involving the same officers and the same victims over a long period of time, resulted in a criminal investigation that uncovered usually inaccessible police records and helped the lawyers impose a debate about racial discrimination during the criminal trial. Lawyers then used these records to launch a civil lawsuit that expanded their definition of police discrimination, from an attention to how individual officers select whom to stop, to challenging institutionalized practices and policies that create unfavorable outcomes for minorities. While courts have so far rejected these arguments, the fact that they considered the claims valid and the evidence admissible testifies to slow but noticeable changes in how civil courts address questions of policing and discrimination.