Calls for police reform and racial justice spur a flurry of resolutions before the ABA House
The ABA House of Delegates responded forcefully to calls for police reform at this year’s annual meeting. It passed resolutions calling for limitations on the use of the qualified immunity defense in civil lawsuits and for heightened oversight of law enforcement via a national use-of-force database.
Backers of police reform see qualified immunity as an obstacle to accountability after officers’ use of deadly force with George Floyd in Minneapolis and Breonna Taylor in Louisville, Kentucky.
In June, the U.S. Supreme Court declined to take on eight cases related to qualified immunity. Critics asked the court to review the doctrine, which they said shields officers accused of using excessive force or conducting unlawful searches.
Absent a ruling from the Supreme Court, Resolution 301A recommends that legislatures review the doctrine to decide whether to restrict its use or end it. The report accompanying the resolution said the doctrine makes it “virtually impossible” for people who have suffered violence at the hands of police to obtain redress through civil court actions, or for individual officers to be held accountable for their actions.
“In recent months, we’ve all been vividly reminded of the need to deter and remedy unconstitutional conduct by law enforcement officers,” Paul Wolfson of the ABA Section of CivilRights and Social Justice told the House. “Our fundamental constitutional rights will be meaningless unless those who are injured have a forceful remedy.”
Several states have proposed changes to qualified immunity laws. Colorado passed legislation 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. Massachusetts legislators have proposed police reforms that would curtail qualified immunity.
Over the two-day House session, delegates also adopted Resolution 116A. It encourages the collection of deadly force data and the appointment of an independent prosecutor if someone is killed while in police custody or during an encounter with law enforcement.
The resolution also called for a national database that would record disciplinary actions against officers and complaints of excessive force. That could prevent officers with histories of misconduct from moving from one jurisdiction to another.
Speaking in support of the resolution, former ABA President Robert Grey Jr. said demands for racial equality are not confined to the Black Lives Matter movement.
“It is now an American movement and one that demands accountability and responsibility,” Grey said.
Resolution 116A’s report estimated that police killed more than 1,000 people in 2019, but it noted that tally was based on reports by the Washington Post and other media outlets. A central database is vital to ensure up-to-date and accurate information, the report said.
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 he believes 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 says.
Harris says people filing lawsuits over police misconduct may still win damages despite the legal doctrine. Instead of ending or limiting immunity, he says the union supports stronger policies that restrict use of force, offer more officer training and increase technology that flags and “weeds out” problem officers.
Life and liberty
The House also adopted Resolution 10I, encouraging the creation of legislation outlawing lynching. A federal law to criminalize lynching, the Emmett Till Anti-Lynching Act, had stalled in Congress, California Lawyers Association President Emilio Varanini said as he presented the resolution to the House.
Attorney Laura Farber said it was time for the ABA to take a stand, and 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.
Also adopted was Resolution 301C: That measure asked the federal government to “desist” from using force to “suppress lawful First Amendment activity.” That came 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, officers had grabbed protesters off the street as they were leaving demonstrations, and they assaulted peaceful protesters, including members of the Wall of Moms activist group.
“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.”
Cause for celebration
The House also passed Resolution 301B, urging that Juneteenth be made a paid legal holiday. Black Americans have long celebrated June 19 to mark the day slaves in Galveston, Texas, learned they had been freed. Support for a national federal holiday has gained momentum since Floyd’s death in police custody in May.
Delegate Deborah Enix-Ross, a candidate for president-elect of the association, said she could think of “no better way” for the ABA to show support for a more just society and a deeper understanding of America’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 M. Turner said slavery is 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
Against the backdrop of recent protests against police brutality, the ABA Annual Meeting, held online for the first time in its history, became an opportunity to discuss how the legal community can address racial injustice.
In her final speech before she handed the gavel to incoming ABA President Patricia Lee Refo, outgoing ABA president 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 the forum “Justice and Policing—A Path Forward,” Martinez got a chance to ask Sen. Tim Scott, R-S.C., about his thoughts on the controversial issue of defunding the police.
Scott, the GOP’s only African American senator, led a Republican bill on police reform that would increase the use of body cameras and limit the use of chokeholds. But the bill would not loosen the qualified immunity doctrine.
Scott rejected the notion of defunding police departments. He said instead that to prevent incidents from escalating, mental health experts could support police units.
“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.
The senator said he is no stranger to discrimination. He said that in the last 20 years, he had been stopped by state or local police officers 18 times, including seven times in one year that he’s been 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.”
This story was originally published in the October-November 2020 issue of the ABA Journal under the headline: “On the Case: Calls for police reform and racial justice spur a flurry of resolutions before the ABA House”