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August 01, 2020

Police misconduct: Qualified immunity among measures debated by reform frontliners

Amid weeks of protests over police misconduct and racial injustice, a panel of practitioners offered several solutions to improve the administration of justice, including further limiting qualified immunity for police, at the American Bar Association Forum on July 31.

“Justice and Policing - A Path Forward” included U.S. District Court Judge Susie Morgan, Baltimore Police Commissioner Michael S. Harrison and Northwestern University political science professor Traci Burch, as well as U.S. Sen. Tim Scott (R-S.C.). The program was a featured event at the 2020 American Bar Association Virtual Annual Meeting, which concludes with the House of Delegates meeting Aug. 3-4.

Nationally, the issue of qualified immunity for police in civil suits has flared in the wake of the May 25 homicide of George Floyd in Minneapolis. Police can still be held criminally liable for their conduct, such as the state charges against the four officers stemming from Floyd’s death. But over the past 40 years, the U.S. Supreme Court has erected a high bar to sue public officials, including police, based on the court’s concerns that these individuals should not be penalized for conduct that was objectively reasonable and that frequent litigation could interfere with their work.

Because the current doctrine stems from Supreme Court interpretations of an 1871 post-Civil War statute under the 14th Amendment, which was intended to give legal protection and equality to Black people, either the court itself or Congress could modify it.

Scott, the only Black Republican in the U.S. Senate who has been his party’s point person in congressional negotiations on the issue of police reform, endorsed changing the qualified immunity doctrine, but would not go as far as those advocates who would like to see it eliminated altogether. In a 10-minute interview with ABA President Judy Perry Martinez, Scott said that there should be changes in the “recourse and restitution for the life lost,” but suggested the legal burden should rest with the states and local governments rather than officers themselves.

He said tackling issues of “education and poverty” among young Black people would be the best and broader approach to deal with the question that has existed for decades: “How do we break the cycle?”

Morgan, who as a federal judge in New Orleans is overseeing that city’s 2012 consent decree with the U.S. Department of Justice, said the legal agreement “has really transformed the New Orleans Police Department” by leading to changes in de-escalation training, mental health capacity and necessary force practices.

The decree, which was created by Congress in 1994 as a federal tool to improve local police, resulted from a federal investigation of the practices of the city’s police department. At its peak, only 14 police departments nationwide have been under such decrees, which have been curtailed by the current Justice Department.

“You have to put all these things in place,” Morgan said, adding that a consent decree case “is not the only way, but it is one way that I found effective.”

Other panelists came back to the issue of qualified immunity, although no consensus on the scope of change surfaced.

Harrison, who was a former high police official in New Orleans, said this issue is probably the most discussed when he talks with other U.S. police chiefs.

“We all know that there has to be reform,” he said. But he said it should be incremental, because if “police are unprotected” from paying civil damages when they make a mistake, “there could be a mass exodus from the profession and a slowdown of recruitment into the profession.”

Burch said to improve police-community relations it is imperative that communities “change the quality and character of contacts between police and the public.” She is optimistic that this can be done and sees reason for hope arising from the current protests and Black Lives Matter movement.

“Most importantly, we are starting to harmonize what we expect out of our police,” she said, adding that it is important we decide as a society “how do we want the police to treat our neighbors and our neighbors’ kids.”

The panel was moderated by Joey Jackson, a lawyer and legal analyst for CNN and HLN. He observed that the death of George Floyd and others at the hands of police, which spurred the protests, have shown that “people have reached a conclusion that enough is enough.” 

Chicago mayor calls on lawyers to defend rule of law

Chicago Mayor Lori Lightfoot catapulted to national prominence in the last several months for her city’s response to the coronavirus and her fiery interactions with President Trump over perceived executive branch overreach as the Windy City deals with an uptick in gun violence.

Through it all, Lightfoot has been a fierce advocate for the rule of law. She spoke about its importance during these divisive times at a luncheon hosted by the American Bar Association Section of Litigation at the 2020 ABA Virtual Annual Meeting. 

Lawyers have a critical role to play as the nation grapples with a new awareness of longstanding racial justice inequities stemming from the death of George Floyd, a contentious presidential election and the continued spread and economic impact of the COVID-19 pandemic, Lightfoot said.

Whether it’s in the hyper-politicization in the selection of judges, the brazen refusal to respect the necessity of judicial independence or the mounting evidence that members of law enforcement are abusing their authority, “the rule of law is under assault in America, at every level of the United States’ judicial system,” she said, calling on the nation’s attorneys to respond.

Standing up for the rule of law need not be a partisan issue nor should it be, she said. “No matter your political outlook, we should all stand united around the basic principles that define us as a country – core among which must be respect for the rule of law.”

As respect for the rule of law diminishes, America’s democratic institutions and government are in danger of becoming delegitimized, and the authority of the judiciary will be sapped, Lightfoot warned.

“We have a lot of tough issues we need to tackle in communities all across the country, but we won't get there if people don’t see our roles as legitimate and it’s here that we as lawyers have a special and profound responsibility to use our own unique power to defend this fundamental facet of our great nation.”