The French, France’s President Emmanuel Macron recently lamented, have become “a nation of 66 million prosecutors”. He may have a point. Whether battling climate change or racial profiling by police, activists and ordinary citizens are pushing groundbreaking legal action to force Macron’s government into action.
When France’s government hosted a roundtable on relations between the police and the public earlier this month as part of the consultations aimed at bolstering confidence in law enforcement, the panel invited to the interior ministry in Paris raised more than a few eyebrows.
There was no shortage of officials in attendance, including senior police officers and gendarmes, union representatives from both forces, four members of parliament and four mayors, and even a guest from Canada’s Royal Mounted Police.
But somehow organisers did not think to invite the public. There were no ordinary citizens, no community representatives, no activists or grassroots campaigners, and none of the academics whose investigations into the chronic problems affecting French policing have been dismissed and ignored over the years.
As a veteran campaigner for community outreach, Omer Mas Capitolin, a founder of the grassroots Community House for Supportive Development, would have been a useful addition to the ministry’s panel. Instead, his NGO counts among six organisations, including Amnesty International, which have launched France’s first class-action lawsuit aimed at forcing the government to tackle systemic discrimination by the police.
For Mas Capitolin, the lawsuit marks a new step in a decades-long struggle to raise awareness of racial profiling that targets France’s “visible minorities”, as non-white citizens are commonly referred to.
“I’ve been to all the rallies, spoken to countless politicians, and listened, time and time again, to their empty promises. But nothing ever changes,” he says in an interview with FRANCE 24. “The law is a pillar of our democracy and a precious tool,” he adds. “We’ve seen around the world that many great social advances result from legal action.”
‘Attack’ the state
While France famously does not compile official statistics based on religious faith, ethnicity or skin colour, racial discrimination by law enforcement – particularly in immigrant-rich city suburbs – has been widely documented.
A study conducted by France’s National Centre for Scientific Research has shown that Blacks are 11.5 times more likely to be checked by police than Whites, and those of Arab origin are seven times more likely. In a landmark 2016 case, France’s highest court ruled for the first time that police had illegally stopped three men based on racial profiling, setting more specific rules to ensure checks are not discriminatory.
At the height of mass protests against racism last summer, Jacques Toubon, then France’s human rights ombudsman, raised the alarm over widespread discrimination and a “crisis of public confidence in the security forces” in a report that made for grim reading. He urged a reversal of what he described as a “warring mentality” in law enforcement.
The difficulty, says lawyer Slim Ben Achour, a protagonist of the 2016 ruling and one of the lawyers involved in the current class-action lawsuit, is to get governments to act upon these injunctions and bring about “systemic change”.
Using a law introduced in 2016 by the former justice minister, Christiane Taubira, Ben Achour and his colleagues have served the government with formal legal notice of demands for concrete steps to end racial profiling by police. The law gives French authorities four months to talk with the plaintiffs about how they can meet the demands. If the plaintiffs are left unsatisfied, the case will go to court.
“Past lawsuits involved only individual plaintiffs and resulted – when successful – in damages being paid,” Ben Achour tells FRANCE 24. “In this case, we’re not looking for damages. We want judges to force the government into meaningful reforms.”
Ben Achour credits Taubira’s 2016 law with giving “vulnerable parties” unprecedented access to the judiciary, allowing them to team up with bigger players, like Amnesty, in class actions. He says it has also brought about a change in both tactics and thinking.
“So far, racial profiling complaints have mostly been used in a defensive capacity, when the police dragged our clients to court,” he explains. “Now we can go on the offensive, we can sue the state,” he adds, using the French word attaque, which translates as both “sue” and “attack”.
Turning to the courts is not an instinctive reaction in France, a nation more accustomed to street protests, canvassing and petitioning lawmakers. “It is not in our culture like it is in the US,” Ben Achour concedes, pointing to changes forced upon the New York Police Department as a model for France.
The largest police department in the US underwent major reform following a 2013 class-action lawsuit brought by a dozen Black and Brown New Yorkers who said they were stopped solely because of their race. A federal judge ruled the NYPD had violated the civil rights of tens of thousands of New Yorkers, dismissing claims that police checks were a necessary crime-fighting tool. Stops dropped precipitously under the new regime, but crime did not rise.
“Class actions allow us to change society through legal means,” says Ben Achour, particularly when politicians fail to deliver on promised change. He points to former president François Hollande, who famously reneged on a campaign pledge to introduce a form of written receipt for all identity checks – a measure long advocated by campaigners against racial profiling.
“Hollande’s promised reform offered a ‘traditional’ path towards meaningful change,” the lawyer explains. “That path was interrupted, now legal action offers an alternative route.”
The alternative route’s growing popularity has prompted academics in a variety of fields to take an interest in litigation. Reflecting on the declining effectiveness of traditional forms of activism, such as strikes and street protests, the left-wing sociologist Geoffroy de Lagasnerie has stressed the importance of pursuing legal avenues to push certain causes – and lamented a French backwardness in the field.
In his 2020 book, Comment sortir de notre impuissance politique (How to end our political impotence), Lagasnerie notes that court action to uphold the rights of migrants has often resulted in defeat for the government. He points to recent rulings that vindicated activists who helped migrants illegally cross the border from Italy and compelled the French state to provide migrant camps in Calais with basic sanitation.
“The law is one of the few powers that can compel a government to back down or act – perhaps the only one,” Lagasnerie writes, urging activists to “multiply legal ‘guerilla actions’, summon European and international law, be imaginative in our use of the law.”
‘The case of the century’
In recent years, many of the most sensational attempts to hold governments accountable through the courts have involved climate campaigners, leading to convictions in countries as diverse as Pakistan, the Netherlands and Colombia.
In a first for France, a court ruled earlier this month that the French state was guilty of failing to keep its promises to slash carbon emissions under the 2015 Paris climate accord. Hailed as a “historic win for climate justice”, the ruling set a two-month deadline for the government to come up with concrete measures to further cut emissions.
While France is likely to appeal the verdict, a Dutch precedent has given environmental campaigners reason to be confident. In 2019, the Dutch government lost its appeal against a landmark ruling that ordered it to slash greenhouse emissions. Officials are now scrambling to cut emissions, for instance by closing fossil-fuel plants ahead of schedule.
Urgenda, an environmental group, fought the successful case on behalf of some 900 Dutch citizens. The same model inspired the French lawsuit, dubbed the “Affaire du siècle” (Case of the Century) and spearheaded by four NGOs following a petition signed by 2.3 million people.
Carole-Anne Sénit, a political scientist who specialises in civil society activism at the University of Utrecht, says such cases signal the emergence of “new coalitions of mobilised players”, bringing together ordinary citizens and a variety of non-state actors, from Greenpeace to smaller groups with experience of litigation, such as the French group Notre affaire à tous.
“When two million people sign a petition in less than a month, it counters the notion of an increasingly apolitical and apathetic public,” she tells FRANCE 24, stressing that online mobilisations complement other forms of activism, including street protests and lobbying. Cases like the Affaire du siècle, Sénit adds, also help to “restore the people’s faith in their ability to bring about change” — particularly in the “repressive context” of a health emergency that has led governments to drastically curtail civic space.
The devastating social and economic effects of the Covid-19 pandemic have generated a surge in legal complaints levelled at government officials, prompting President Emmanuel Macron to liken the French to “a nation of 66 million prosecutors” in one of the trademark “petites phrases” that infuriate his critics.
As early as March 4, 2020, two weeks before the first nationwide lockdown, a group of health workers asked France’s highest administrative court to force the government to provide them with FFP2 face masks. Dozens more legal complaints soon followed, calling for stricter lockdown measures, the requisitioning of factories to produce masks and antiseptic gel, or improved sanitation in overcrowded prisons.
“Lawsuits targeting the state seldom succeed; but when they do, they encourage others to come forward,” says lawyer Julien Lalanne, noting that one undesired effect is to “overburden courts that were already stretched”.
Lalanne says a key aim of the increased litigation is to set legal precedents on issues that had not previously been brought before the courts, thereby expanding both the judges’ area of competence and the state’s liability.
“France has long privileged the political arena,” he tells FRANCE 24. “We’re now witnessing a shift towards leaning on judges in order to put pressure on politicians.” To meet the challenge, the judiciary is having to step up its communication, Lalanne adds, bringing the arcane world of litigation “outside of the courtrooms and into the public domain”.
Writing in the Conversation, Jessy Bailly, a political scientist at the University of Aix-Marseille, notes that lawsuits brought against the state need not always be successful in court to be considered a success – at least not when it comes to communication.
“Lawsuits have a spectacular character simply by targeting the giant that is the state and by inspiring copycats,” Bailly writes. “This ability to catch the media’s attention enables them to put pressure on the government, which is well aware that an intransigent public opinion is watching.”
By coinciding with the start of the interior ministry’s highly-publicised consultations on police reform, the class-action lawsuit against racial profiling was able to undercut the government’s communication and catch the public eye, at least briefly.
Mas Capitolin is hoping the case will help raise awareness of rampant injustice and of a growing divide that hurts both the police and the public, alienating youths even as the country ponders how to tackle “separatist” ideologies.
“People need to realise what it means to be Black or Arab in parts of the country, to fear the police when you have done nothing, to tell your own son to look down and keep it shut when he meets an officer,” says the veteran activist. “They also need to challenge a policing culture that leads so many officers to take their own lives,” he adds, referring to the scourge of suicides among French officers.
But Mas Capitolin and his fellow plaintiffs will not be satisfied with a mere PR victory. Their aim is to foster social change through the courts.
“We’re not only denouncing the problem; we’re offering concrete solutions – that’s what democracy is about,” he says, pointing to proposed reforms put forward by the six NGOs in conjunction with the lawsuit. They include a change in the penal code to demand accountability in stops, and an end to the longstanding practice of gauging police performance by the number of tickets issued or arrests made, benchmarks that encourage baseless identity checks.
“We could have opted for a criminal lawsuit, but we’re not after a few bad apples in the police,” adds Ben Achour, the lawyer. “We’re aiming at the heart of the problem; and that means going for the state.”