Criminal Law

#PurpleChairChat Episode 5: Race, Policing, and the Constitution

CAC’s President Elizabeth Wydra, Civil Rights Director David H. Gans, and Director of Policy Kristine Kippins discuss the history of abusive policing that led to the ratification of the Fourteenth Amendment, and why ending qualified immunity is necessary to restore police accountability.

Show Transcript

ELIZABETH WYDRA: Hello everyone. I’m Elizabeth Wydra, President of the Constitutional Accountability Center. Thank you so much for joining us for yet another installment of CAC s Purple Chair Chat series where we take on important issues of law, justice, and democracy and break them down for you with our experts.

Normally we would be coming to you from CAC’s office in downtown Washington, D.C. in our iconic purple chairs, hence the name of this series, but obviously we are coming to you from our respective homes because of the covid-19 public health crisis, and I certainly hope that all of you and your loved ones are staying safe.

Today we are going to take on another crisis, the scourge of white supremacist state-sponsored violence that has been a part of this nation since it’s very beginning. Brianna Taylor, George Floyd, Tamir Rice, who should be turning 18 today, but instead was killed by the police as a child playing in the park. We say these names. We say these names of Black Americans, Black children, who have been killed by police. Because it seems as if the only hope for even a sliver of accountability is for the public to raise their voices and demand accountability for these police killings.

We have seen these demands soar in recent days as protesters have taken to the streets and the civil rights community has worked to try to provide some important first steps for accountability, for justice. Joining me today to talk about the roots of policing racism and the way that this has interacted with our laws and the Constitution are some of CAC’s experts on this subject. First, we’ll be talking with my colleague David Gans who’s the Director of the Civil Rights, Human Rights, and Citizenship Program here at CAC.  And then we’ll be talking with Kristine Kippins who’s our Policy Director.

David, thank you so much for joining me today. You’ve written on the topic of race and policing. While this reckoning that we’re going through right now with racist policing is new, the problem is not, it’s steeped in American life. Can you talk about how this moment we’re in right now relates to our constitutional history?

DAVID GANS: Sure, thank you Elizabeth. This goes to a critical moment in the Fourteenth Amendment and a critical part of the Fourteenth Amendment that has not been understood for so long. Police abuse and police violence were very much at the core of the Fourteenth Amendment. The Fourteenth Amendment was added to the Constitution with racist police violence at its core. Two incredibly important incidents took place right before the passage and then ratification of the Fourteenth Amendment that really focused the nation’s mind on racial police violence.

In 1866, the nation is considering whether the Fourteenth Amendment should be added to the Constitution. Congress is debating. It comes against the backdrop of Southern States passing Black Codes and all sorts of other laws that attempt to re-establish slavery and take away fundamental rights, write discrimination into those state laws and deny the promised freedom that was embedded in the Thirteenth Amendment when slavery was abolished.

In Memphis in May of 1866 and then several weeks later in New Orleans, there were huge massacres that were led by the police. Hundreds of people were brutally killed. Women were raped. There was a killing spree in these two cities where the police lead white mobs in brutally killing huge numbers of people and it really focused the nation on this question. What would it mean to not amend the Constitution further? The lesson was without the Fourteenth Amendment, without adding a new guarantee in the Constitution that broadly protected liberty, equality, and that gave equal protection, would be a loss for all persons. We were going to see more unchecked racial violence and we would see Southern state governments refuse to recognize the fundamental rights and equality of Black Americans who had been freed during the Civil War and formally in the Thirteenth Amendment.

ELIZABETH WYDRA: Right David, so that’s an important part of the story that you’re telling in terms of our Constitution. The institution of chattel slavery was ended by the Thirteenth Amendment but then the question was what did it mean for formerly enslaved people to truly be free in this nation. And because the Constitution’s protections of due process and liberty at that point were only limited on the federal government, there wasn’t a clear constitutional mandate that states respect equal protection of the laws for all and within its borders. That was the question behind the Fourteenth Amendment. How do we make meaningful this freedom that we just fought a bloody Civil War over.

DAVID GANS: That’s right Elizabeth. So, when the Thirteenth Amendment was passed there were many arguments by ending slavery that opened the door to real freedom and the answer that the South gave through these Black Codes was that freedom was really very little different than slavery. There was an attempt in the Southern States to reinstitute slavery and police abuse with sort of part and parcel of this.

They passed vagrancy laws that allowed the police to stop and arrest Black people if they weren’t being employed by there by their former owners or by other White citizens. They asked for a pass on the streets. Freedom of movement was a sham, and the police played a central role in enforcing that. When they were writing the Fourteenth Amendment, the Joint Committee on Reconstruction, which was formed for this task went around the South and they talked, the men who wrote the 14th Amendment went around and they talked to people of all walks of life and learned what were the conditions going on in the South.

And one of the things that you see come up and up again in this report that the Joint Committee issued in June of 1866­–when Congress is debating the Fourteenth Amendment—is incident after incident of massive brutality in gruesome detail terms and pages and pages of the police abuse that were being perpetrated. This violence that we’re seeing now in the case of George Floyd and so many others goes back to this history that is at the root of the Fourteenth Amendment.

In many ways part of the problem is the Supreme Court has never given this history it’s do. There are no cases from the Supreme Court that sort of lay out this history and say we have to take this account when we interpret the Fourteenth Amendment. When we look at what constitutional limits that are on police use of force, the Supreme Court has never talked about it. This is an area where it the law is very clear. The history is very clear.

This was kind of a motivating purpose of the Fourteenth Amendment. These were kind of crucial events that sort of put the nation to a choice. Would you allow this kind of unchecked lawlessness and violence to go forward and the response to these events was we need the Fourteenth Amendment. We need these universal guarantees of liberty and equality. We need new limits on the states.

ELIZABETH WYDRA: David, I feel like the fact that we’re still fighting these fights today, you know, certainly show us that whatever happened in that moment of choice clearly wasn’t enough. So, in your narrative that you’ve written­­–you can find more about that on our website­­–you lay out this constitutional history and what the Fourteenth Amendment’s guarantee of equal protection of the laws was meant to accomplish. But far from incorporating that history that you lay out and the desire to end racist policing that you lay out in detail in the Fourteenth Amendment, the Supreme Court has cut back on the meaningfulness of that guarantee of equality. Can you talk about how the court has done that and how sort of that promise of equality was thwarted?

DAVID GANS: Sure. So, a big part of the problem is when the courts talk about policing it talks about it begins and ends with the Founding. It never sort of talks about the Fourteenth Amendment as a critical moment, and that’s so important because it’s the 14th Amendment where race, police abuse, and equal citizenship are really front and center in our constitutional history and the court has just sort of erased that from our story.

This is a critical moment where we have to sort of recapture that story and bring it to bear to redress our broken system of policing and the court even beyond the Constitution. The court has made things much worse by inventing limits on remedies probably the most important of which is qualified immunity, which the court has invented to say you can’t sue a police officer for violating your rights unless you can show that they violated clearly established law.

The court says it has to be obvious. It has to be apparent they have violated a previous existing case that is so closely applicable that there’s no doubt about it. And if you think about the Fourteenth Amendment history, you know when the Fourteenth Amendment was enacted in 1868 there was a period where courts were figuring out its meaning. There were important early victories where the court frustrated it. But the idea that you have to show a violation of clearly established law and it makes no sense of the Fourteenth Amendment history. This is kind of another way the courts erasure of the Fourteenth Amendment has produced really wrongful doctrines that prevent constitutional rights from being enforced and erode the rule of law in our country.

ELIZABETH WYDRA: Thank you so much David for all of that history and I think that that really lays out the backdrop really well for the current debate over what David referred to just now, this judge made doctrine of qualified immunity, that has really served to thwart the promise of equality and the guarantee of equal protection against racist policing that we saw before the passage of the Fourteenth Amendment. And the Supreme Court has done that by interpreting qualified immunity to essentially mean impunity for police who take Black lives in this country.

It is incredibly hard to hold those state officers accountable when they violate people’s civil rights and to talk about how we are working now to end the doctrine of qualified immunity, I am delighted that I’ll be joined by our colleague Kristine Kippins who is our Director of Policy here at CAC.

CAC has been fighting since its beginnings in the over a decade since we were founded to end the doctrine of immunity that allows accountability to basically be something that we have in theory but not really in fact. We know that without accountability there can be no justice. As long as, the police are able to take Black lives with impunity, there can be no justice. The judge made doctrine of qualified immunity is a major obstacle to that accountability and justice.

So, Kristine we’ve seen, you know protesters in the streets and the civil rights community really working to as a first step provide that accountability by ending the qualified immunity doctrine. We’ve fought this in the courts, but now the Supreme Court it seems is really clearly not going to take up reforming qualified immunity. So, the ball is in Congress’s court. What’s happening right now in the halls of Congress?

KRISTINE KIPPINS: Well, I appreciate the question. Right now, we have three bills that are trying to play a role in responding to the protesters in the streets, responding to the cries for finally having racial equality, tearing down white supremacy and anti-Black systems within our government and throughout our country.

So, in the Senate we have introduced by Tim Scott S.3985. That’s the Just and Unifying Solutions to Invigorate Communities Everywhere Act also known as the Justice Act. This is seen as the Republican response to calls to limit the use of force by police. Now within the provisions of this act, unfortunately, you will find no accountability measures. It is basically giving the police throughout the country more funds to do things that they’re kind of already doing. So, in terms of providing accountability, you’re not really going to find much there in the Justice Act.

However, in the House and the Senate you have the George Floyd Justice in Policing Act. That’s HR. 7120 and S.3912. Now that bill has been introduced by Congresswoman Bass out of California, Congressman Nadler out of New York, and Senators Harris from California and Booker from New Jersey. Now, this is a more comprehensive response to what the civil rights community asked of Congress earlier this month.

CAC was proud to join a letter written by the Leadership Conference for Civil and Human Rights and joined by over 450 other civil rights, civil liberties, and racial justice organizations throughout the country that asked Congress to prioritize eight items in order to provide some sort of accountability and justice. And to cut curtail, you know, these terrible actions by police throughout the country and among those priorities was ending qualified immunity.

So, the Justice in Policing Act attempt to end qualified immunity and it does so by ending it for police and local law enforcement only. Now, I did mention that there are three bills and there’s another House bill called the Ending Qualified Immunity Act. That’s HR. 7085 and that was introduced by Congressman Justin Amash out of Michigan and Congresswoman Ayanna Presley from Massachusetts. When we analyze this bill we found that this bill would actually end qualified immunity writ large which for CAC is a very important position to take.

ELIZABETH WYDRA: So, can you talk a little bit more about that really important point that you just made because I think you know a lot of these other bills they might seem to work to end qualified immunity but in our view the only way to fix qualified immunity is to end it.

When you think about violators of civil rights, obviously right now, we’re talking about police killings, but they’re also incredibly problematic violations of civil rights that occur in for example, the corrections system. And so, if corrections officers are not included in that qualified immunity context, then that’s a real problem. Can you talk about the differences there and explain for folks there are some bills that are good first steps but being clear about what we really need to happen to end qualified immunity?

KRISTINE KIPPINS: So, it’s true that the JPA would end qualified immunity for law enforcement only which is a major first step. Some cases, you know, don’t move forward and people can’t get justice because qualified immunity blocking them at the gate. However, there are so many other state actors who can infringe upon your rights who benefit from having qualified immunity and then there’s no accountability for the state. There’s no incentive for the state to change their ways and make sure that their staff are properly trained, equipped, and staffed in order to make sure that there’s less of a chance of your constitutional and legal rights being violated or deprived.

So, what the JPA has done by ending qualified immunity, but only for law enforcement it tells the Supreme Court that Congress has deemed that qualified immunity is okay, but not for law enforcement. The Supreme Court has given the green light by Congress to continue with this harmful practice that they created but they cannot do it for law enforcement.

So, when you cabin it in a sense you end up codifying qualified immunity and putting it into the statute when qualified immunity never existed in the text of the statute to begin with. You really don’t want to set the standard that constitutional deprivation of rights is bad just for law enforcement and not for other state actors. That’s not the way the Constitution is meant to work. All of the rights within the Constitution and all of the laws that protect us are there for all of us to enjoy and when those are deprived from us, we must be able to seek redress no matter who the state actor is.

We applaud the fact that law enforcement will not be able to claim this defense in court but must also be true for other state actors. Which is why CAC was proud to endorse the Ending Qualified Immunity Act introduced by Congressman Amash and Congresswoman Presley because that bill would in fact end qualified immunity for all state actors as was intended by the statute that was written by Congress during Reconstruction.

ELIZABETH WYDRA: Thank you so much for that clear explanation. I think that it really clarifies sort of what’s at stake. And what our North Star should be when we’re talking about reforms here. Obviously, these bills are still working their way through Congress, so nothing is a done deal for better or for worse here. What can people do really care about this issue?

KRISTINE KIPPINS: Well, the House is having a vote on the JPA today. So, you definitely want to call your Congress people and ask them, you know to improve upon the bill and make sure that qualified immunity is ended for all state actors, not just police.

We expect that this vote will go the way Democratic leadership hopes it will and be sent to the Senate and from there it’s really important that everyone called their Senators and again, ask them to improve upon this bill by ending qualified immunity for all state actors, not just local law enforcement.

ELIZABETH WYDRA: Thank you so much Kristine. Thank you for your leadership on this issue within CAC and within our broader civil rights community. Your persistence in continuing to fight to make sure that equality is meaningful for all in this country. Thank you, Kristine, for joining us and thank you all of you who have watched today.

This is an incredibly important issue that we will continue to be watching at CAC. You can look at our website for more of our continuing work on ending qualified immunity, on highlighting the history of the fight for equality in this country, and more of our work across the spectrum of constitutional issues that we work on. Again, thank you for joining us on this Purple Chair Chat. Will see you all again soon!