This article was originally published in the ABA Journal on August 4, 2020.
The ABA House of Delegates responded forcefully to calls for police reform at this year's annual meeting, passing resolutions calling for a curtailing of the qualified immunity doctrine blocking civil lawsuits and for heightened oversight of law enforcement through a national use-of-force database.
The House adopted Resolution 301A on qualified immunity with the backing of a vast majority of delegates at Tuesday’s session. The legal doctrine has become a focal point for backers of police reform who see it as an obstacle to accountability for police misconduct.
In June, the U.S. Supreme Court declined to take on eight cases related to qualified immunity. Critics would like the court to review the doctrine, which they say shields officers accused of using excessive force or unlawful searches.
Absent a ruling from the Supreme Court, a report accompanying the resolution says legislatures should now review the doctrine to decide whether to curtail it.
Paul Wolfson of the ABA Section of Civil Rights and Social Justice argued that without ending or limiting the doctrine, people who are victims of police misconduct would have no avenue for relief.
“In recent months, we’ve all been vividly reminded of the need to deter and remedy unconstitutional conduct by law enforcement officers,” Wolfson said. “Our fundamental constitutional rights will be meaningless unless those who are injured have a forceful remedy.”
On Monday the House adopted Resolution 116A, which encourages the collection of records and data on use of deadly force, another flashpoint in the national debate over police brutality and racial injustice.
The passing of the resolution comes after both Republicans and Democrats have called for greater oversight of police officers through federal data collection.
Robert Harris, director of the Los Angeles Police Protective League—the union representing the Los Angeles Police Department—says a national registry is a “step in the right direction” but said that the ABA’s resolution on qualified immunity “misses the mark.”
“If the goal is to hold officers accountable, there’s a better way to do that,” Harris said in an interview.
Harris said that people filing lawsuits over police misconduct may still win damages, despite the legal doctrine. His union supports stronger use of force policies and officer training, as well as technology that flags and “weeds out” problem officers, he said.
Votes on lynching, protests and Juneteenth
On Tuesday, the House also passed and adopted Resolution 10I encouraging the creation of legislation outlawing lynching.
A federal law to criminalize lynching, the Emmett Till Anti-Lynching Act, has stalled in Congress, California Lawyers Association president Emilio Varanini said. Attorney Laura Farber said that it was time for the ABA to take a stand as she urged delegates to pass the resolution.
“I’m also disheartened, sad and frankly a little disgusted to know that here in 2020 we have not yet, and Congress has not yet passed legislation making lynching a hate crime—a federal crime,” Farber said.
Resolution 301C, also adopted Tuesday, asks the government to “desist” from using force to “suppress lawful First Amendment activity.” That comes after President Donald Trump sent federal officers to Portland, Oregon, who fired tear gas and stun grenades at demonstrators and hauled some protesters into unmarked vehicles.
Oregon Attorney General Ellen Rosenblum spoke in favor of the resolution. She said that in some cases, protesters had been grabbed off the street as they were leaving demonstrations. Federal officials had assaulted peaceful protesters, including the Wall of Moms activist group, she said.
“The federal government’s actions in Portland served as a direct assault on the right to organize, to assemble, to march and to protest,” Rosenblum said. “I sincerely hope never again to see these infringements upon people’s First and Fourth amendment rights in my city or any other.”
On Tuesday, the House also passed Resolution 301B to make Juneteenth a paid legal holiday. Black Americans have long celebrated June 19 to the mark the day that slaves in Galveston, Texas, learned they had been freed. Support for a national federal holiday has gained steam since the death of George Floyd while in police custody in May.
Delegate Deborah Enix-Ross said she could think of “no better way” for the ABA to show support for a “more just society” and an “understanding of our nation’s history.”
“I know there are some who may have concerns about the economic impact of another federal holiday. But I would hope that we will never again equate the evils of slavery with economics. There is simply no price on doing what is right,” Enix-Ross said.
ABA president-elect Reginald Turner voiced his support for the resolution and said slavery was the nation’s “original sin.”
“Juneteenth is an appropriate commemoration of the end of slavery in the United States. It should be a national holiday, to be celebrated by all,” Turner said.
Capturing the moment
Because of the coronavirus pandemic, the ABA’s annual meeting was held online for the first time in its history. Against the backdrop of recent protests, the meeting became a forum for how the legal community can address police brutality and racial injustice.
In her final speech before she handed the gavel to incoming ABA President Patricia Lee Refo, Judy Perry Martinez urged lawyers to root out racism.
“Let none of us say the job is too big or the problems of racism run too deep,” Martinez said. “This is our torch to carry. Lawyers have a special responsibility to fight injustice, especially injustice caused by laws and practices that are racist and unjust in word or effect.”
At a the ABA forum “Justice and Policing—A Path Forward,” on Friday, Martinez asked Sen. Tim Scott, R-S.C., about his thoughts on police defunding and qualified immunity.
The senator said he was no stranger to discrimination. He said that in the last 20 years, he has been stopped by state or local police officers 18 times, including seven times while he was in office. Scott said that underlines the importance of voting in local elections.
“Those are the folks directly in positions of power to determine the type of local law enforcement you have,” Scott said. “When we don’t vote in those elections, we are actually taking a step back from the one place where police reform comes to life immediately.”
Scott, the GOP’s only African American senator, led a Republican bill on police reform that would require departments to use body cameras and limit the use of chokeholds. However, the bill would not loosen the qualified immunity doctrine. Scott bristled against the notion of defunding police departments. He said he instead supports a strategy of providing police units with mental health experts to help prevent incidents from escalating.
“The concept of defunding the police is the scariest thought I’ve ever heard as it relates to communities of color and the vulnerable communities,” Scott told Martinez.
Curtailing immunity
The report that accompanies Resolution 301A says qualified immunity makes it “virtually impossible” for people who have suffered violence at the police’s hands to obtain redress through civil court actions. The law also means that individual officers are rarely held to account for their actions, the report adds.
“Without an effective civil remedy, serious abuses of governmental power will persist unchecked, many motivated by racial discrimination. That is not acceptable in the United States in the 21st century,” the report states.
Several states have moved forward on overhauling the definition of qualified immunity. Colorado passed a law in June that would make it easier for people injured by the police to override a qualified immunity defense and claim up to $25,000 in damages, Forbes reports. Massachusetts legislators are proposing police reforms that would curtail qualified immunity.
Collecting data on deadly force
Resolution 116A encourages governments to collect accurate records and data on deadly force incidents. The resolution encourages the creation of laws that would mandate an independent investigation if someone is killed during an encounter with law enforcement or in custody.
The resolution also calls for a national database that would record disciplinary actions against officers and complaints of excessive force. That could prevent officers with a history of using excessive force from moving from one jurisdiction to another.
The ABA Section of Civil Rights and Social Justice and the ABA Coalition on Racial and Ethnic Justice co-sponsored the resolution. Speaking in support, former ABA President Robert Grey Jr. said demands for racial equality had grown louder because of recent events, including the death of George Floyd.
“It is now an American movement and one that demands accountability and responsibility,” Grey said.
President Bill Clinton’s sweeping crime bill in 1994 mandated the federal collection of use-of-force data from police departments. But reporting has not been enforced and is inconsistent.
The report that accompanied Resolution 116A estimates that in 2019, police killed more than 1,000 people but says those numbers are based on efforts by the Washington Post and other outlets to capture data. A central database is vital to ensure up-to-date and accurate information, the report says.
The House on Monday also adopted Resolution 106A on restorative justice. The resolution urges prosecutors, criminal defense attorneys and others in the criminal justice system to consider an approach that prescribes meetings between offenders and victims that are facilitated by trained specialists.