Experts Say Legal System Impedes Police Reform

Plaintiffs suing police face multiple hurdles, so it's difficult to punish bad cops, some argue.

By , Wisconsin Justice Initiative - Jul 7th, 2020 10:43 am
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"Police the Police" sign attached to an overpass. Photo by Graham Kilmer.

“Police the Police” sign attached to an overpass. Photo by Graham Kilmer.

Criminal law rarely provides justice in cases of police brutality and violence because convictions are so difficult to obtain even with video evidence, according to a Villanova University law school associate dean.

“It’s hard to win cases against police officers, and because plaintiffs usually lose, police are not deterred from their bad behavior,” said Teressa Ravenell, who also is a professor at Villanova’s Charles Widger School of Law.

Ravenell made her comments during the American Constitution Society’s recent briefing call on police violence and systematic racism in the U.S. legal system. ACS held the call in response to the killing of George Floyd and waves of protest across the country.

Ravenell said that federal law allows individuals to sue when their civil rights are violated by government actors, but that law has not prevented police violence.

The law, Section 1983, has become “another example of systematic failure,” she remarked. The statute is “not inherently flawed,” but the U.S. Supreme Court’s interpretation of the statute has caused it to fail, she said. Problematic interpretation of Section 1983 includes the judge-made doctrine of qualified immunity, Ravenell said.

The qualified immunity doctrine protects public officials from civil liability unless their conduct violates a clearly established constitutional right about which a reasonable person would have known. The Supreme Court has written that the doctrine protects “all but the plainly incompetent or those who knowingly violate the law” and balances the need to hold public officials accountable when they act irresponsibly with the need to shield them from harassment, distraction, and liability when they perform their duties reasonably.

In a 2018 dissent, however, Justice Sonia Sotomayor wrote that the doctrine “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The doctrine has recently shielded officers from liability for stealing $225,000 while executing a search warrant, shooting a 10-year-old boy in his backyard while pursuing a suspect, and slamming to the ground a woman who turned to walk away from an officer toward her daughter, rendering the woman unconscious.

Ravenell set forth five large hurdles plaintiffs face under current law, which in her view result in continued racist law enforcement.

First, the Supreme Court’s Fourth Amendment cases give police officers too much power to stop, investigate, and arrest Black people. Police may legally stop someone if an officer has reasonable suspicion to think that criminal activity is afoot, and that standard can be met when a person acts evasively in a high-crime area. Ravenell called “high-crime area” a “fancy way” of saying poor, Black neighborhoods. As a result, Blacks are more likely to be stopped by police. Further, Blacks are pulled over for traffic violations more than any other group, she said.

Second, the Court’s Fourth Amendment cases give police officers too much license to use force. The court has allowed officers to use deadly force when they reasonably believe a person poses an immediate threat of harm to the officer or others, and too often officers view unarmed Black men as threats, Ravenell said. Ravenell proposed that the qualified immunity standard should at the least be transformed from considering what a reasonable or average officer would do to what a well-trained officer would do in the situation.

Third, Ravenell said, under current law plaintiffs face too many causation problems because they must establish which specific officers harmed them. For instance, a protester shot by a rubber bullet must show which officer fired the shot. But that is impossible if officers will not testify against each other, she remarked.

Fourth, the qualified immunity defense protects officers in too many situations when the law was not clearly established at the time the officers acted. “Many people are writing about this right now,” she said, adding that “we need to eliminate the qualified immunity defense.”

Fifth, even when plaintiffs succeed, verdicts against officers fail to alter conduct because officers do not pay the verdicts against them; taxpayers do.

Ravenell closed by noting that the failure to fire violent officers also played a role in creating the current crisis. The officer who killed George Floyd had 18 prior complaints against him, she noted. Ravenell compared the vastly greater money spent on monitoring parolees with that spent on monitoring police.

“We need to ensure that police departments have the incentive and the means to terminate the recidivist officers,” plus a database to track them so they are not hired by other communities, she said.

Another call participant, Taja-Nia Henderson, a professor at Rutgers Law School and dean of the Rutgers Graduate School, discussed the historical predicates for police abuses today.

Henderson described how policing in the United States has always been linked to property interests and the control of black and brown bodies.

The first police forces in the country were organized to protect property and capitalist interests, not the health and safety of people, she noted. In the South, this meant police aimed to protect slaveholders’ property, including slaves, Henderson said. She explained that law enforcement in the South regularly failed to differentiate between free and enslaved people, and this presumption later translated into linking all Blacks to criminality following emancipation.

An ongoing manifestation of this historical racism, she pointed out, is the high frequency with which white people call police “to report Black people for doing nothing more than not being where those callers think they should be.”

This phenomenon is not new, but with cell phone video the public can now see these “living-while-Black incidents unfold.” Examples she cited include the recent incident of a white woman in Central Park calling police about a Black man who reminded her about park rules and the arrest in 2018 of two Black men who sat down in a Philadelphia Starbucks.

She said that these racist beliefs still boil down to property concerns — who gets to claim space, who gets to use property, and whose interests police will protect.  And in the minds of whites and police, Black people often have no rights to space that deserve respect, she remarked.

Henderson called on law schools to start tackling systematic racism. Law schools need to ensure that law students grapple with these problems as part of legal education, she said. “Black lives must matter in law school.”

Justin Hansford, law professor at Howard University School of Law and executive director of the school’s Thurgood Marshall Civil Rights Center, discussed possible reforms. Hansford is an activist and scholar in human rights law and social movements.

Hansford addressed misunderstandings about what protesters and activists are seeking this summer. Activists are not calling for traditional community policing interventions; instead, they’re calling for police abolition, he said.

Hansford slammed the concept of community policing as a response to police violence. He discussed his ire when he testified in 2015 before the President’s Task Force on 21st Century Policing and someone suggested hosting a “sweet tea day” for church leaders and the public to chat with officers, and someone else suggested that the Ferguson, Missouri uprisings were more about bad public relations than bad police practices.

Hansford said he responded by pointing out that the U.S. makes up 5 percent of the world’s population but holds 25 percent of the world’s incarcerated individuals. Further, the U.S. has imprisoned more Blacks than South Africa did at the height of apartheid, and police violence has not abated since Ferguson, with more than 1,000 killings by police in the U.S. each year. “There’s not enough sweet tea” to make that acceptable, he remarked.

Today’s policing issues are not due to individual “bad apple officers” but instead an “oppressive policing system built on controlling and managing the marginalized while protecting property,” he said.

The calls for police abolition “have shocked people and brought fear to people’s hearts,” he said. But abolition does not mean immediate elimination of all police from the streets or a lack of accountability for serious violent crimes, he explained.

Hansford pointed to the ideas of Miriame Kaba, an activist and police abolitionist from Chicago, for some basic guidelines: if proposed reforms give police more money, oppose them; if proposals involve hiring more police, oppose them; if proposals involve increasing technology, oppose them, because the technology will likely be used against people; and if proposals are focused on individual dialogues funded by taxpayer money, oppose them, because although dialogue is good, taxpayer funding is better used elsewhere.

Hansford then advocated for five particular abolitionist reforms requiring proposals and legislation: (1) offer reparations to victims of police violence; (2) require police officers to carry personal liability insurance to pay for brutality and death claims; (3) redirect money from police forces and prisons to other social goods (such as Los Angeles taking $150,000 from the police department to invest in the black community); (4) disarm police; and (5) provide for data transparency.

“Why is it that we have not enough money for books in our schools, but we have enough money for tanks and tear gas in our police departments?” he asked.

Moderator Christopher Wright Durocher, ACS’s senior director of policy and program, asked all panelists what lawyers can do to support anti-racism efforts.

Hansford suggested training with the National Lawyers Guild’s legal observer program. Trained observers attend protests to make sure that civil rights are protected. The observers wear neon yellow hats as identification so protestors know someone is looking out for them and police know someone is watching.

Henderson suggested donations to funds providing bail for arrested protestors. Lawyers can also assist with arraignments for arrested protestors, especially those who are detained too long, she said.

Henderson also suggested citizen advocacy with legislators, especially regarding a federal bill to end qualified immunity. She urged people to call and email their Congress members.“This is a chance to put the pressure on our elected officials so that they do not take this summer as time off,” she said.

Ravenell echoed Henderson’s comments on pushing for elimination of qualified immunity. Because it is a judge-made doctrine, “Congress could correct this very easily by making it very clear that qualified immunity is not available,” she said.

Margo Kirchner writes for a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.

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