Oversight Hearing on “Police Practices and Law Enforcement Accountability” | The American Association For Justice Archive
For Immediate Release: June 10, 2020

Oversight Hearing on “Police Practices and Law Enforcement Accountability”

Statement of Bruce Stern, President - June 10, 2020

Statement of Bruce Stern, President
Oversight Hearing on “Police Practices and Law Enforcement Accountability”
House Committee on the Judiciary
June 10, 2020

The American Association for Justice (AAJ) thanks the Chairman for holding this hearing and
submits this statement for inclusion in the record. The horrific actions against Black people over
the last few weeks have brought to light a tragic American failure long in need of reform: police
accountability and systemic racism. The continued tragic, unjust, and senseless deaths require us
to do more to fight police brutality, systematic racism, and violations of the U.S. Constitution.
This is a time for action, and AAJ and its members are committed to helping families seek justice
in the courts. AAJ is a national, voluntary bar association established in 1946 to strengthen the
civil justice system, preserve the right to trial by jury, and protect access to the courts for those
who have been wrongfully injured or killed, or whose rights have been violated. With members in
the United States, Canada, and abroad, AAJ is the world’s largest plaintiff trial bar. Ben Crump,
who is testifying today, and AAJ members across the country, represent the families of those killed
or injured by police violence and people whose civil rights have been violated by the government.

AAJ applauds Rep. Bass (D-CA), Chairman Nadler (D-NY) and the Congressional Black Caucus
for taking swift action in response to the appalling death of George Floyd by the knee of a police
officer. AAJ supports quick and bold action on many of the issues addressed in the Justice in
Policing Act as a comprehensive approach for addressing police brutality and systemic racism
within law enforcement. We thank the sponsors for addressing qualified immunity, a judicially
developed doctrine that prevents families of victims killed or injured by police violence from
holding officers accountable. AAJ also strongly supports the inclusion of provisions relating to
data collection and retention, as well as transparency in policing and restoring public trust.

End Qualified Immunity: The judicially created doctrine of qualified immunity strips
individuals, including victims of police violence and misconduct, of their ability to enforce their
constitutional rights. The Civil Rights Act of 1871, codified as 42 U.S.C. §1983, provides if any
person, acting under the color of state law, unlawfully deprives another of his or her federally
guaranteed rights, that person “shall be liable to the party injured.” Judicial interpretation has
grossly distorted the purpose of §1983 and rendered ineffectual an important mechanism of its
enforcement power; the doctrine recognizes that a person’s constitutional rights can be violated by
public officials but fails to provide any opportunity for accountability under the law. It does so by
promulgating a nonsensical, judge-made rule not found in the statute, which creates a standard
many victims and survivors can never meet. Section 1983 must be amended so that the doctrine of 
qualified immunity no longer provides a defense or immunity to state actors—including law
enforcement officers—who violate constitutional rights.

As part of the qualified immunity analysis, a court determines whether the police officer violated
a “clearly established” statutory or constitutional right. The Supreme Court has held that to meet
that standard there generally must be a prior court case with nearly identical facts from either the
Supreme Court or a Court of Appeal from which the case arises. Effectively, unless the police
happen to commit the precise same constitutional violation twice, qualified immunity is a complete
bar to holding an officer accountable for deprivation of constitutional rights. And even if the victim
can show violations of a clearly established right, the government official is entitled to qualified
immunity if he or she made a reasonable mistake as to what the law requires.

Qualified immunity protects a government official from having to go through a trial at all.
Accordingly, courts resolve qualified immunity issues as early in a case as possible, often before
discovery when critical information becomes more available. This can further foreclose disclosure
by the police of key information regarding the events that led up to a senseless, tragic death or
other significant injury.

Section 1983 fundamentally protects constitutional rights. Because qualified immunity is a
judicially created doctrine, Congress must be careful in the language it uses to address it so as not
to legitimize a doctrine not found in the existing statute. To this end, AAJ also recommends
amending §1983 so that the usual legal rules embodied in the doctrine of respondeat superior apply
and that employers of law enforcement officers can be held accountable for the actions of their
employees. The combination of qualified immunity and the fact that municipalities cannot be held
accountability for an officer’s actions leads to recurring, uncontrolled police violence, misconduct,
and abuse.

Additional consideration should also be given to whether a federal statute of limitation could
preserve individual access to justice. Also worthy of consideration is whether the victim and his
or her family can ever be given a meaningful chance at achieving a measure of justice if the jury
deciding their case is not from the surrounding community, as is the circumstance for most federal
court trials which occur outside of the community in which the incident occurs.

Public Access to Information: Nothing has done more in recent years to bring broader public
awareness to the crisis of police violence and misconduct than personal cell phone video. Official
police video, if collected and retained on a consistent basis, could augment and enhance
information gathered by the public, and the Justice for Policing Act contains key provisions
regarding the use and retention of body camera and dashboard camera videos, which often play
key evidentiary roles in both criminal and civil proceedings.

Collection: The establishment of a rebuttable evidentiary presumption for failing to
capture or destroying body camera video is an essential provision of the bill.

Retention: All electronic communications—including body camera and dashboard camera
video—must be preserved with appropriate privacy considerations in place for members
of the public, especially minor children. Third-party vendors retained by law enforcement 
for maintaining body camera and other video footage must have both the capacity and
security to do so.

In addition, federal data collection on law enforcement practices is another central and critical
component to transparency and creating some level of public trust. Data collection and retention
on traffic stops, body searches, and deadly force are required under the bill and must be available
to the public and for attorneys to document patterns and practices of misconduct.

Finally, a provision could be added to the bill requiring law enforcement to self-identify. As the
public is aware from recent protests, it is often difficult to tell what specific law enforcement
agency has provided which officers. The public should not be left guessing which law enforcement
agency or particular officer is involved in policing particular events or venues. Officers should be
prohibited from covering up identifying information, such as their names, on their badges.

Police Misconduct Registry: In the case of Derek Chauvin, the former Minneapolis police officer
charged with second-degree murder for the death of George Floyd, 18 prior complaints had been
filed against him. Shouldn’t this information be available and before 18 complaints or reports of
misconduct are filed? And if Mr. Chauvin had been terminated earlier by the Minneapolis Police
Department, shouldn’t the St. Paul Police Department located just across the Mississippi River
know about Mr. Chauvin’s record when making a hiring decision? A national registry allows for
informed decision-making. Transparency will enable law enforcement agencies to terminate
individuals with a history of racist or abusive behavior more expeditiously and ensure that they do
not become a problem for another law enforcement agency.

AAJ is grateful to Chairman Nadler and members of the Judiciary Committee for quickly
providing a national forum in which to discuss these critical issues which are long overdue for
congressional reform. Congress must heed the calls of the American public for police
accountability and enact tangible measures to end systemic racism in all facets of American life.
The lives lost due to police violence and misconduct during our nation’s history and the leadership
of individuals and organizations who have long fought for civil rights, justice and equality must
result in action. The time has come for Congress to enact reforms to finally move this country
closer to fulfilling America’s promise for everyone.

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The American Association for Justice works to preserve the constitutional right to trial by jury and to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org