Last Friday, the National Constitution Center hosted a national Town Hall program on policing, protests, and the Constitution. The wide-ranging discussions covered qualified immunity for police officers, the history of racial inequality, protests and the First Amendment, and more. Part two of the discussion, this panel, features Monica Bell of Yale Law School, David French of The Dispatch, Janai Nelson of the NAACP Legal Defense and Educational Fund, and Theodore Shaw of the University of North Carolina School of Law. Part one is a keynote conversation featuring Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit, and you can listen to that here. Jeffrey Rosen moderates. This week’s episode is a crossover with our companion podcast, We the People, a weekly show of constitutional debate that you can listen to here.
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PARTICIPANTS
Monica Bell is an Associate Professor of Law at Yale Law School and an Associate Professor of Sociology at Yale University. She has published academic work in The Yale Law Journal, Law & Society Review, Social Service Review, and the Annual Review of Law & Social Science. She has also written for popular outlets such as the Los Angeles Review of Books and the Washington Post. Before joining the Yale Law School faculty, she was a Climenko Fellow & Lecturer on Law at Harvard Law School and has previously served as a Liman Fellow at the Legal Aid Society of the District of Columbia.
David French is a senior editor for The Dispatch, where he also co-hosts the weekly podcast Advisory Opinions. In addition, he is a columnist for Time, and a senior fellow at the National Review Institute. French is the author or co-author of several books, including the New York Times bestseller of Rise of ISIS: A Threat We Can’t Ignore. David has previously served as a senior writer for the National Review, president of the Foundation for Individual Rights in Education, a lecturer at Cornell Law School, and as a senior counsel for the American Center for Law and Justice and the Alliance Defending Freedom.
Janai Nelson is Associate Director-Counsel of the NAACP Legal Defense and Educational Fund, where she is also a member of LDF’s litigation and policy teams and has served as interim director of LDF’s Thurgood Marshall Institute. Prior to joining LDF, Janai was Associate Dean for Faculty Scholarship and Associate Director of the Ronald H. Brown Center for Civil Rights and Economic Development at St. John’s University School of Law where she was also a full professor of law. She has also served as a Fulbright Scholar at the Legal Resources Center in Accra, Ghana and the Director of LDF’s Political Participation Group. Nelson is a regular contributor to popular outlets such as Reuters and the HuffPost.
Theodore Shaw is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina School of Law. Shaw has published many book chapters, articles and essays on civil rights, including the introduction to The Ferguson Report: United States Department of Justice, Civil Rights Division. Shaw previously practiced as a Trial Attorney in the Honors Program of the U.S. Department of Justice, Civil Rights Division in Washington, D.C. Shaw later worked for the NAACP Legal Defense Fund for over 26 years. There he litigated cases related education, housing, voting rights and capital punishment. He would eventually go on to become its fifth Director-Counsel.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Additional resources for the discussion are also available here.
This episode was engineered by the National Constitution Center's AV team with help from Jackie McDermott and produced by Jackie McDermott and Tanaya Tauber. Research was provided by Maggie Gillespie, Lana Ulrich, and the Constitutional Content Team.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. During these challenging times, increasing awareness and understanding of the constitution is more urgently important than ever, so that we can learn together in order to form a more perfect union.
It is central to the National Constitution Center's mission to convene discussions like the one we held last Friday, a national town hall discussion about policing, protests, and the constitution. We'll share that town hall today with you in two parts. Part two features some of America's most distinguished scholars on policing, protests, and the constitution. Professor Monica Bell of Yale Law School, David French, writer and constitutional lawyer, Janai Nelson of NAACP Legal Defense Fund, and Professor Ted Shaw of the University of North Carolina.
The Constitution Center will be convening more of these town hall discussions in the weeks ahead. Thank you for learning with us, and for tuning into We The People, and our Companion Podcast live at the National Constitution Center to learn more in the weeks ahead. It is an honor to welcome all of you to our town hall. Let's begin with this question of qualified immunity for police officers. There are so many questions about it.
There are bills pending in Congress to reform it. What I want to put on the table is how precisely it evolved. Monica, tell us what the Ku Klux Klan Act after reconstruction said about how citizens could sue for violations of their constitutional rights, and how the Supreme Court more recently developed and expanded this notion of qualified immunity that's controversial today.
Monica Bell: [00:02:17] Yeah. So, I'm actually going to defer to another panelist to talk a little bit more about that doctrinal history. But one of the things I think is really important to just kind of put on the table, and I'm picking up here a little bit from the previous conversation, I think what what we see in the conversation about qualified immunity is, is, is a desire to sort of do post-hoc accountability for specific police officers. And one of the things that I think is super important to have on the table in our conversation about the role of the constitution in this protest is a much more co- sense of collective accountability and pre- kind of earlier ways of thinking about the notion of accountability in policing.
So that's something I want to get to before we kind of j ... I just want to put it on the table as something to discuss later as other panelists talk about the kind of doctrinal points on qualified immunity.
Jeffrey Rosen: [00:03:09] That's so powerful. And you've written so importantly about notions of how to, the police can maintain legitimacy in communities, and look forward to digging into all of that as well. David French, you've recently, and actually not so recently too, about a year ago, written pieces saying end qualified immunity. There are bills pending in Congress.
They have bipartisan sponsorship ranging from Democrats to Justin Amash, and remarkably on the Supreme Court right now, justices ranging from Justice Sonia Sotomayor to Justice Clarence Thomas have called for re-examining the idea of qualified immunity on the grounds that it is not rooted in the text or original understanding of the relevant statutes. Can you really help us understand where the doctrine came from, how it expanded-
David French: [00:03:54] Yeah.
Jeffrey Rosen: [00:03:54] ... And why it should be reformed?
David French: [00:03:55] So, you have the since 1871, federal law has permitted Americans to file lawsuits against public officials who violate their constitutional rights. And the statutory language here is, is really clear. It says every person who under color of any statute, ordinance, regulation, custom usage, et cetera or causes subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivations of rights, privileges, or immunities secured by the constitution and laws shall be liable to the party injured in an actionate law.
In other words, let's just put that in non-legalese. If your rights are violated, you have a right to sue and recover damages. It's crystal clear. Well, for a while th- there was no doctrine of qualified immunity that came out of that statute because the statute's very, very clear, but there began to emerge some sort of common law, good faith defenses. But then in 1982 in a case called Harlow V. Fitzgerald, the Supreme Court really concocted, I mean, just made up the, the modern doctrine of qualified immunity.
And, and what the doctrine said is that you had to prove that the public official who violated your rights was violating a clearly established statutory or constitutional right, of which a reasonable person would've known. Well, what's clearly established? I mean, you'd think the first amendment is clearly established, the fourth amendment is clearly established, but no, what they meant was ... And, and the judge before earlier said, said this, you know, quite well, y-, essentially, what you have to find is a case very similar to your case in a court of controlling jurisdiction to, and say, "See, this was just adjudicated to be unlawful. This happened to me. And so, therefore, I can recover damages."
And how close does the case have to be? I'll give you an example from a cert petition that's pending before the Supreme Court right now. And that is there's a case not far from where I live in Tennessee involving a man who was arrested, and he surrendered, and he was sitting up, and he, he was obviously in surrendering, and a police dog was sicced on him, and attacked him, and sent him to the ER. So, he filed a lawsuit over the, the use of the police dog.
And there was a qualified immunity ruling because the only previous case law in regarding the police, a police dog involved someone who was lying down, [laughs] not somebody who is sitting up in a posture of surrender. What? I mean, you have to get that precise? And so this is going to be an interesting ... I, I, there are multiple cert petitions pending. This is going to be very interesting because if you're a textualist as many of the GOP you know, the, the Republican nominees are, if you're a textualist, where is qualified immunity in the text?
If you're an institutionalist as some of them are, they take a look at it and they say, "Well, wait a minute, what will end in qualified immunity due to the institution of the police, and the, and the government, and, and such a dramatic change coming from the court? Well, the dramatic change from the court was Harlow V. Fitzgerald in 1982. So, that's sort of the, the, the legal posture. And it's one of the reasons why you have this alliance between Justice Sotomayor and Justice Thomas on this issue.
Justice Thomas is a textualist, and he's going to look at that, and he's going to say, "I don't see qualified immunity in there." So, it's going to be very interesting to see what happens.
Jeffrey Rosen: [00:07:25] Thanks for that really helpful summary. Thanks for calling out Harlow V. Fitzgerald. But it's very important to learn that that was a 1982 case that in the view of Justices Thomas and Sotomayor deviate from the text of the relevant statute. And thank you also, David, for calling our attention to this lawsuit that the court is now being asked to consider. The Washington Post, yesterday, wrote Supreme Court has to reconsider immunity available to police accused of brutality, and sites to the brief of the libertarian Cato Institute, which is one of the groups on all sides of the spectrum that have urged the court to revisit the issue, writing that Mr. Floyd's death, while in the custody of police officers, shows the perversity of the court's rulings on qualified immunity.
One federal judge has called the coalition of organizations on the left, right, and middle, perhaps the most diverse anarchy, that means group of friends of the court, ever assembled. Janai Nelson, tell us about cases that LDF is involved with involving qualified immunity. And, and tell us more about these bills that are pending in Congress to reform it. How and why should it be reformed?
Janai Nelson: [00:08:36] Thanks for that question. As you already noted this is a very interesting area of criminal justice that has brought together across ideological alliance. The Legal Defense Fund has contributed to briefs along with the Cato Institute, which is not the most common occurrence, but [inaudible 00:09:02] that we coalesce around is the fact that providing zero tolerance or to, to any accountability for police officers leads to the type of uprising that we are seeing today.
When there is no accountability in the legal system or those who enforce the laws or who we charge with the duty of enforcing the laws, that can lead to an entire breakdown, and disintegration of the trust between communities and those who are sworn to protect and serve them. So, there are bills pending in Congress to really try to push back on the common law doctrine that has developed in courts over decades, as, as David pointed out.
That was not the text of the Ku Klux Klan act of 1871, but it evolved over years through cases like Pierson V. Ray and, and the cases that, that David cited all the way up to the challenge that we see in circuit courts now, where there's no uniformity in how to interpret section 1983 when it comes to police immunity, that we are literally splitting hairs on facts when it comes to whether officers understand that there is a established constitutional right given the circumstances that, that lead to the particular charge.
And, and as Judge McKee pointed out, w- in this context, we're talking about civil liability. There are also lots of concerns about the failures of the criminal system, U.S. attorneys and district attorneys and grand juries having the courage and, and the direction and the leadership from those who are sworn to do justice to hold police officers to account in the criminal system. So, when you have a failure of accountability in both the civil and criminal systems, you are encouraging a lawless set of law enforcement officers who can act with impunity.
And I think that's what we saw when we looked at the horrifying tape and killing of George Floyd, that we saw an officer with his hands in his pockets, looking squarely into the camera of a crowd of people letting him know that he was actually kneeling the life out of an individual, and he continued with great assurance that he would likely not be prosecuted. And hopefully, this is a case, this is one of the many cases of police violence where we will see a change in the will of the judiciary in the prosecutors, and in all who are involved in the criminal justice system who can bring justice to George Floyd and his family.
Jeffrey Rosen: [00:11:31] Thank you for those powerful remarks. And for reminding us that it's not just qualified immunity on the civil side, but also failures in the law of criminal accountability that are being discussed for reform. Ted Shaw, one of our friends asks what is the pending federal legislation about qualified immunity? I'm just reading from the discussion of the bill sponsored by Senators Harris, Markey, and, and Booker. Their resolution calls for the elimination of qualified immunity for law enforcement officials. Professor Shaw, would elimination be the best solution? And perhaps you could also talk in light of your long experience as head of LDF about the need for reform on the criminal as well as the civil side.
Ted Shaw: [00:12:17] Well you know, obviously, qualified immunity, if it were eliminated, that would change the, the balance of how these cases and instances of alleged police misconduct and those that lead to the deaths of African-Americans and others and those that don't lead to death, but nonetheless significant injury. I mean, that would change it. All of us acknowledge and recognize that policing that's a difficult job, it's a dangerous job, and it requires split second decisions very often.
But having said that I think part of the problem, a big part of the problem is, is the nature of policing in this country and the nature of the relationships between police departments and black and brown communities, that nature can be described not ironically given what's happening in the moment often as an occupation. And it's an occupation that has been driven in recent decades by the war on d- drugs, but it goes way back before that.
So, I wanted to get that out there, but I also wanted to say, it's not just the doctrine of qualified immunity which is tremendously important but you know, the law that governs racial discrimination and the laws that particularly applied to police departments go beyond qualified immunity. So, for example, there are a jurisprudential standards that have been applied, I think often [inaudible 00:14:25] that make it more difficult to hold police departments accountable.
I think about you know, Alliance V. City of LA, 1982 case, ironically, since David correctly pointed to Arlo. But in 1982 case which involved the use of a chokehold on a black man who subsequently sued. I mean, he was injured because of the the chokehold, but the Supreme Court held in Lyons that that individuals that particular individual, but other individuals don't have standing to sue because they can't show they're going to be subjected to the chokehold in the future.
So standards or doctrines, I should say, like standing have been used to to blunt or make impossible reform of police departments driven by in part these lawsuits by people who have been subjected to injury and harm. And so, there's all kinds of doctrines. And then, we go back to the the standards with respect to qualified immunity, they parallel, the intent standard that has been applied to the 14th amendment over and over and over again.
It pains me to say more often than not the constitution has been interpreted in ways that have betrayed the protections of black and other people of color with respect to the protection of the laws. And so this is much broader than qualified immunity, although it's certainly about that. But it goes to the way the constitution and the laws are interpreted in general. They often betray black folks and people of color, even though our understanding and our belief is that, it's the constitution, it's the rule of law that we should turn to rather than violence to look for protections. The law hasn't always done well in protecting black folks. I can say more often than not, sadly doctrinally, it hasn't.
Jeffrey Rosen: [00:16:01] The law hasn't always done well in protecting black folks. Those are simple but powerfully true words. And thanks to all of you for that really memorable first round of comments. Friends, the questions are just remarkable. There are 151 of them. I'm going to suggest to our panelists, you might scroll through the Q&A box as we're talking, and if you see a question or two that you're especially moved to respond to, you can do that in the course of your answer. I'll just tee up a question for each of you, and if you want to pick up one of our friend's questions as well, that would be great.
But Monica Bell, I mentioned at the beginning of your introduction this important article you wrote, Police Reform and the Dismantling of Legal Estrangement. In that article you wrote that there's a theory called the legitimacy theory, which emphasizes procedural justice, which gives officers an obligation to treat people with dignity and respect and be- behave in a neutral, non-biased way. You argued that what you call legitimacy theory offers an incomplete diagnosis of a policing crisis. And instead you say, what you call legal estrangement is a better lens through which scholars and policy officers can understand, and respond to the current problems of policing. Tell us more about legal estrangement, and why you think it's a more effective way of looking at our current crisis.
Monica Bell: [00:17:18] Right. So, I think for decades now we've framed the conversation around the relationship between black communities and the police as one of distrust without really looking at the actual content of, or, or asking the question, w- why should black communities trust the police? I mean, I think we've kind of in our conversation about doctrine and the kind of trajectory of the law, we see that the law has not protected black people most of the time. And on a larger scale, the law has been a really status quo type of influence.
So, when I think about qualified immunity and why we have it, one way to talk about it is the conversation about cases. Another way to talk about it is sociologically, why would the court think it is better to defer to police than to defer to the judgments of black communities about what is happening? And that's because the, the kind of courts play this sort of status quo role. And that's an example of legal estrangement is much more systemic than an individual police officer mistreated me, or even killed someone is actually representative of a much more of collective memory, historical perspective on how the law has operated to exclude black people from the body politic.
And now, I think the conversations that are being had around reform are conversations that are much more structural. So, what a legal estrangement perspective gets you is to focus less on how we train police officers in an individual level, or even at a department level to be more trustworthy and to kind of like that sort of it- kind of direct interaction based framework, but instead to think, how do we shift the role of policing in society? How do we make it so the courts don't defer to police claims instead of deferring to community claims?
These are the types of perspectives w- you might get from a legal estrangement perspective. And I I just want to make sure to get this in here. I think that's also kind of this legal estrangement issue [laughs] is also a reason that the movement right now is not having the same conversation in general that we're having here today. So, there's a division between constitutional and legal arguments about policing, and the political arguments that are being had about policing. And that is that has increased over the past few decades, and I think it's a real tragedy.
We have to start thinking about new ways of constitutionalism that move us beyond the doctrine that comes from courts, and instead looks to people to reinterpret what the constitution's meaning is, realizing that, of course the enforceability of all of that depends on our institutions, but thinking in a much more long-term way about how we change the interpretation of the constitution. But th- so that's, that's some of the work I think is really important.
Jeffrey Rosen: [00:20:21] And we've just posted your very important article, Police Reform and the Dismantling of Legal Estrangement, in the chat box along with some other crucial texts. So, friends, m- please make sure to read it after our discussion. David French Debbie [Gada 00:21:42] asks, "How should we think of the role of the police, the National Guard and the military in situations of protests and riots?" You, David, served in Iraq.
You've been awarded for your bravery, but you, a- and you've also expressed concern about the deployment of federal and military forces to suppress civilian protests. Tell us about what the law says about under what circumstances the president can federalize law enforcement, and how you would analyze as a legal matter what has gone on with regard to the balance between federal and state enforcement over the past week or so?
David French: [00:21:13] Boy. Okay. I'll try to unpeel that onion quickly.
Jeffrey Rosen: [00:21:16] There's a lot to talk about.
David French: [00:21:16] So, a- as a constitutional matter, the president has inherent authority to put down an actual insurrection. I mean, this is something that is like a constitutional principle that was solidified by actual practice when it came to Abraham Lincoln in the Civil War when in certain instances when it came to suppressing segregationist resistance to integration in the, in the South. Now, but the default is the Posse Comitatus act, which says that federal under- troops under control of the president, under federal control are prohibited from engaging in law enforcement activities unless otherwise specified by act of Congress.
So, when you see National Guard troops out, say in New York, or in my own you know, own area, Nashville, they are not under federal control, they are under the control of governors, the state governors. At that point, a national guardsman is more like a state militia than part of the federal than the, than the U.S. army. It's more of like, this is a state militia ac- operating under state authority. Now, this is relatively common to see the National Guard come out under state authority when there is civil unrest.
The huge controversy that was generate, began to generate was when, when two things happening around the same time, one, Donald Trump threatens to invoke the Insurrection Act, which is a way around Posse Comitatus, or he can arguably, on his own authority, and over the objection of governors upon a presidential finding that the conditions for an Insurrection Act invocation exists, he can take control, federalize the National Guard, or deploy regular army troops into cities. So, number one, that's incredibly controversial all on its own.
And right when he made the threat, he made the threat to invoke the Insurrection Act about 20 minutes before he did his walk over to St. John's Episcopal church where federal troops and feder- where federal law enforcement had just attacked, violently attacked peaceful protestors to clear the way for Trump. So, what did that do? That sent a message of number one Trump is saying he's willing to use his statutory and constitutional authority if, even over governors' objections to invoke the Insurrection Act, and to exert his control over troops, putting down civil unrest.
And number two, in the one area where his administration had immediate control over s- protests, they violently attacked peaceful protestors. So, now you're beginning to see why number three is happening, which is all kinds of resistance from retired military, gen- General Mattis Mike Mullen, many others going, "No, do not." D- this is, this is deeply disturbing because one of the ... There's an, you know, a wrap of this, there's an internal problem and an external problem the military would have here.
Internal problem, the military is remarkably diverse. People do not get recruited to join the United States Army to bash in, to, to charge peaceful protesters in the United States of America. They are recruited into the United States Army to defend the United States constitution, and not to attack peaceful protesters. It would be remarkably divisive within the military to activate and federalized troops, and use them in the way Trump already used his authority over federal law enforcement. And number two, the external problem is the military for a lot of reasons is the single most trusted institution, public institution in the United States, and it's not close. Why is that?
Well, one of the reasons is i- 'cause it's one of the most remarkably diverse institutions in the United States. Number two, for decades since its low point after Vietnam, it has been scrupulously nonpartisan, and committed to discipline and excellence. The military does not want to risk that public trust, and a, by being deployed over the objections of local officials into the cities of America, it doesn't want that. And so, w- w- what you're seeing is, and I'm, a- what you're seeing is, A, a lot of people outside the military are no longer in the chain of command saying no.
And there are a lot of people inside the military who are doing some kind of risky things or inside the chain of command to express their disagreement. I mean, when Mark Esper came out, secretary of defense came out and said, "Don't invoke the Insurrection Act." That's a highly unusual move from a cabinet official to, to provide his advice to the president that publicly. Also you have seen people like the chief of staff or the, the chairman of the joint chiefs saying to, sending a message out to all troops, "Your job is to protect the constitution, including the right of peaceful protest." which was a, a well, quite the, quite the statement made the very day after that walk to St. John's Episcopal church.
So, this is a, this is a very seminal moment, I think, in civil military relations. If the president invokes the Insurrection Act, if unrest continues, and the president invokes that Insurrection Act over the objection of governors and mayors, that is going to create a, a real problem in this country, in, in, and create a real tension in civil military relations. And I, I hope that he is, is restrained either by he's ... Either he's restrains himself or somebody restrains him because that I think that's that would be a dangerous moment, and not because of the military is ill-disciplined or inherently dangerous, but because it creates a fracture that it, it's, it's activating the military in conditions that the military was not designed to be activated.
Jeffrey Rosen: [00:27:16] Thank you so much for all of that, David, for your service, and for helping us understand this crucially important issue. And General Mattis' statements that you mentioned can be found in the Atlantic Magazine recently. And we'll post that in the chat box, and V- very grateful for that insight. Janai, we have a series of questions from our friends about pending reforms. Trey Suresh Kumar asks, "What laws can be passed to make the constitution serve all people more equally?" Mark Thomas asks, specifically, "There's a bill now pending in Congress called the Emmett Till anti-lynching act. The bill is being held up in debate over whether to include minor injuries as a violation. How do existing legal standards consider define minor injuries?" Maybe you could take up some of those, and also some of the legislation that LDF is supporting to bring reform in the wake of recent tragedies.
Janai Nelson: [00:28:10] Certainly I think what this conversation and, and the events around us proves just quite poignantly is that the, the crisis of policing is really a [inaudible 00:29:39]. There's, there are so many aspects to it to tackle, to bring reform, to bring the needed justice, to instill confidence in communities of color in particular that we have to attack it from multiple angles. So, we are s- supporting the Emmett Till Act. We're supporting the, the end of qualified immunity. We're also supporting more national oversight of police departments.
It, it's, it's fascinating that the officer Derek Chauvin who killed George Floyd had 18 other disciplinary complaints, and we, you know, have no way of knowing about those complaints in States like New York where you have laws like 50-a that protect an officer's disciplinary record from public disclosure. So, it's very difficult to regulate a profession when there's such a deep lack of transparency, and there are different regulations and rules that pertain to the over 18,000 law enforcement agencies that exist in this country. There needs to be federalized oversight of this profession.
You know, as you know, as lawyers, if any one of us were to be disbarred in a particular state, and then go try to get barred in another state, we would have to disclose that disbarment to the new state, and let them know that there was something that caused our disbarment. That state would then take that into serious consideration, and frankly, the chances of us getting a, a entry in that state, the new state would probably be quite slim. Quite differently, police officers don't even have to move to another state.
They can be discharged from a police department because of egregious misconduct and then go to a neighboring police department or a police department in another state and be hired. That's because there's no transparency in disciplinary records. So, one of the other pieces of legislation that we're calling for is the creation of a national database of police misconduct. It is important that we make informed decisions about the people we are charging, and we are paying as taxpayers to protect and serve us.
But just like Professor Bell said, when we are at the point where we're talking about qualified immunity, or we're talking about reporting misconduct, we're already too late, we're already past a point where we should be as a society. That means that our law enforcement officers have broken the trust that we've p- placed in them to protect and serve us. There are other areas of law that also need reform in addition to qualified immunity. And I'd be remissed if I didn't bring up the case of Breonna Taylor.
Today, she would have turned 27 years old. This is a young woman who was an EMT worker, an essential worker, whose life was taken because of racialized police violence. And I say that because there was an evolution of the doctrine of, of announcing your knock before entering a home. So, under the fourth amendment there's something known as the castle doctrine that was established in 1995 in a case called Wilson vs Arkansas. And as the name suggests, a person's home is considered their castle, but law enforcement is not allowed to enter a home without announcing itself and giving the occupant an opportunity to allow entry in a peaceful manner.
But often law enforcement are asking for no knock entry warrants, which is the one that was used in the Breonna Taylor case that allows them without announcing themselves to engage in sometimes quite brutal and violent, forcible entry of the premises. In her case, we understand law enforcement officers sprayed her home with bullets without any announcement of their presence. And it's those types of reforms that can prevent that egregious harm to human life to the, the violence against black bodies that is committed on a routine basis. That is another area of reform that is critically important, not only doctrinally, but also through the legislatures.
Jeffrey Rosen: [00:32:37] Thank you so much for that, and for noting the connection between the doctrine of no knock entry and the death of Breonna Taylor. And we will post those no knock cases, if we can find them, during the chat as well. Monica Bell, many, many questions about legal reform. Mary [Izad 00:34:21] asked, "Could reform and criminal liability be more effective in having a deterrent effect on police officers and the discriminatory conduct versus reform in qualified immunity that will only serve to create civil liability which does not directly impact police departments?" Understanding that you're calling our attention to more structural forces that creates bias. Are there particular legal reforms either legislative or doctrinal in the courts th- do you think could be constructive?
Monica Bell: [00:33:26] So, actually, just wanted to check one thing was Ted Shaw gonna go?
Jeffrey Rosen: [00:33:30] Oh, forgive me.
Monica Bell: [00:33:30] [crosstalk 00:34:56].
Jeffrey Rosen: [00:33:30] I'm so sorry. Yes. Thank you very much for keeping me on target. Ted, my apologies, and-
Ted Shaw: [00:33:36] It's okay. I, I [crosstalk 00:35:02] [laughs].
Jeffrey Rosen: [00:33:36] ... I'll ask the same question. Oh, no, no, no, we've, we've got to keep in the right order. I'll ask the same question to you because basically our, our questioners are very eager for all of your thoughts about what statutory and doctrinal reforms you think would be most constructive.
Ted Shaw: [00:33:51] Well, we, we've been talking about statutory reform with respect to qualified immunity other legal reforms. You know, I think that a- as I alluded to the Supreme Court ought to revisit Lyons case, and open up the door to more regulation of police departments I think that would be a good thing. But some of this is I think really public policy stuff. You know, I, I think it's important that the relationship between police departments, and black communities change in fundamental ways.
I said before that I think police departments often have a, an occupation mentality, and I referenced the war on drugs, which I think is a hugely important context for how police departments or individual police officers interact and how they perceive their, their role. You know, we haven't talked about the the militarization of police departments in recent years. The Obama administration walked some of that back, but under the Trump administration, once again they have been militarized in ways that I think open up opportunities for more confrontations with peaceful protesters, for example. That's problematic.
And I think that ... And I'm not sure how to do this, but I can't help but not I can't help mentioning the, the ways in which white individuals who interact with police departments and who are accused of crimes are treated, or even if it's not a matter of being accused of crimes, my wife reminds me all the time about when Dylan Roof was arrested after he murdered nine African-Americans in church, in Charleston, South Carolina, on his way to the police station, they stopped and bought him hamburgers. You know, I mean you know, black folks when they get arrested by the police, don't get hamburgers.
Jeffrey Rosen: [00:36:03] [laughs].
Ted Shaw: [00:36:03] Also think about the ways in which protesters have been interacting with law enforcement and they feel with respect to this the virus white protesters armed to the teeth feel safe, and comfortable, and within their rights, I mean, the second amendment and the second amendment does exist. That's another conversation. But walking right on up to law enforcement their face just contorted with rage and anger within inches of these individuals screaming. There's no black person who would do that and get away with it, that I see. So, the ways in which we interact and the police interact with people you know, are color-coded in important respects.
What do we do about that? Well I don't have all of the answers. I know that we have to be conscious of these disparities. And you know, they, you know, black folks are often gaslighted, [laughs] when we talk about these kind of inequities, these kind of inequalities. The gaslighting has to stop. I think that's one of the things that as Judge McKee indicated. Yeah, I'm, I'm not sure how hopeful I am, but one thing that we are seeing is more white people marching, and appearing to get it. How long that's going to last, I don't know. But I, I, I do feel that that's a cause for hope as opposed to despair.
Jeffrey Rosen: [00:37:30] Thank you for your service. As head of LDF, Ben [Wiren 00:39:40] asks, "What is LDF, again? I missed this." This is the Legal Defense and Education Fund, the NAACP Legal Defense and Education Fund which Ted Shaw led with great distinction and which Janai now serves with great distinction. Monica Bell, you've heard so much to bring together q- questions about what legal, statutory, and doctrinal reforms you'd support. Lots of questions about the balance. Ted Shaw just mentioned the second amendment, the balance between first and second amendment rights of protest, as well as some pending lawsuits against the police for targeting reporters, as well as for discriminatory enforcement of curfews. So, please take up any strands of those that you think would be most constructive.
Monica Bell: [00:38:16] Yeah. Absolutely. So thank you for the question. I think one of the main, ... Oh, I, I guess there, there are a few themes in the types of reforms I would support. And one of the major themes is that it not look, that those reforms not just look at policing as if it's a free standing in justice and a freestanding entity. So, one of the questions in the chat box that I kind of wanted to get to was this idea of, you know, how do we come to grips with racism in America? And one of, of the things that is both heartening ... O- one of the things that's heartening about the moment we're in right now is that more white people are recognizing the grave, the gravity of racial injustice that black communities face.
However, I worry a bit that, that a conception of what racism looks like is too localized, is too much about policing on its own, and is too much about particular sort of physical violence when there is structural violence, and symbolic violence through the, through mechanisms of residential segregation, and a lack of educational opportunity, et cetera, that are actually intertwined with a lot of what we see in policing. So, we need a much more comprehensive racial justice agenda, and we can't be satisfied with tinkering around, inside, internally to policing.
So so, what might some of those other pieces look like? So, I- I'm thinking about coming to grips history, and what has happened across history is really important. And very few Americans actually know much about the particular aspects of slavery, about particular aspects of the history of lynching, and how it was legally supported, and how police were tacitly a part of this. Very few people actually understand how in times when black people have tried to integrate predominantly white neighborhoods, that there isn't just private violence but also state supported and state allowed violence that has kept those communities separate.
And th- and so much of what we actually observe in terms of racial inequality now is tethered not to, you know, sh- poor choices that black people made. It's not this kind of neoliberal world in which there's just been a lot of choice, is actually kind of the constraint. And it's all supported by a legal framework. And so educating people about those things, making them core parts of our curriculum. Those are reforms that I think are really important because I think as the judge and as Ted Shaw was say- saying, it's like, "I have hope, but it's truncated a bit by having a knowledge of history, having seen movements evolve over time, and having been excited in the past about reforms that were possible, but that never quite happened."
And I think one of the reasons they don't is because we sh- we tinker around with th- with law without really changing the ideology underlying a law. And one of the key ways in which we do that is by tearing down the enduring structures of racism, like segregation, like a complete ignorance of our, of our history, both recent and deep in the past. And so, I really need ... Like, I, I'm g- only really going to be excited about reforms that dig into those issues and, and aren't just kind of through minimal doctrinal changes, although those incremental changes are of course also important.
Jeffrey Rosen: [00:41:50] Thanks for that call for powerful, meaningful, structural reform rather than minimal doctrinal changes. Thanks also for the crucial emphasis on the importance of teaching people about our difficult history and the constitution. And of course, that's what the Constitution Center is trying to do with programs like this. All of these programs, and our educational resources are archived on the interactive constitution. And if you click on the 13th, and 14th, and 15th amendments, you'll find early draft of those amendments as well as all of the historical and, and contemporary learning that we can possibly collect so that citizens can educate themselves.
In this extraordinary experiment of the national town hall, I'm so struck that we've had up to 1,400 viewers, friends participating in the town hall, and we have 224 questions. What a wonderful example of people asking and engaging. This is going to be the last round for each of us, because the only rule of these programs is they end on time. So, David I'll ask for your closing thoughts. There are a series of questions about the military state balance, and also about the rights of protestors, and a police.
There's a, there is a lawsuit filed in Minnesota that says that the police targeted reporters. The ACLU of Southern California is suing about the draconian curfews put in place. Other questioners asks if the military can be used to [inaudible 00:45:32] protestors. Your thoughts on, your concluding thoughts on, on which, whatever those themes you find most meaningful.
David French: [00:43:25] Yeah. You know going on the, the military point, the National Guard, when it's under the s- control of the governors is essentially operating less as an instrument of the broader United States military and more as a a police force under the control of the governors of the states. And they're going to have all of the same, the- they're going to have all of the same constitutional obligations on the National Guard that are on the police, and their interactions with citizens. And that number one obligation is to protect the constitutional rights of the citizens of the state or of the city.
And that includes protecting the right of protest. Now, the right of protest obviously does not include violent activity. And obvi- and, and there are curfews that are sometimes necessary when violence breaks out. But I have the same analysis that applies to curfews that often applies to say, for example, shelter-at-home orders in a pandemic. An order that is valid when given is not necessarily p- it's not permanently valid. It is not indefinitely valid.
And so, extending curfews beyond their beyond the time in which they're necessary is a constitutional problem, for example. But let me, let me sort of conclo- close by planting my civil libertar- flying my civil libertarian flag for a moment on, on what can we do from a policy basis more broadly? We've talked about qualified immunity. I want to very briefly bring up two other things. And I'm cribbing this from my friend Jane Coaston at Vox. I'll call it the Jane Coaston plan. Th- three points, end qualified immunity. Two, reform police unions.
Police unions bargain for two broad categories of things. One is wages and benefits. How much money you're going to p- get paid? What's your pension? Et cetera. They also bargain about the terms and conditions of their employment, which includes discipline, which includes how much, like, what are they, how can they be held accountable for misconduct? That is something that often essentially removes from broader public policy debates, the actual way in which you hold tr- our cops accountable, and puts it into a complective bargaining process that is often ...
You know, it's one of the things that we've almo- we talked about, ... You know, Professor Bell's talking about public knowledge. How many people know about collective bargaining agreements for police unions? I mean, [laughs] one out of 1,000? So, reform police unions, and here's the last one. We need a fewer criminal laws in this country. We need to criminalize fewer things. You know, E- Eric Garner was, died. What was the, what was the predicate for arresting him? Selling loosey cigarette.
Not to get all libertarian and everything, but I feel like I should be able, if I have five extra cigarettes [laughs] to sell them without violating the law. I mean, you know, we, we, we criminalize so many things and that, you know what that does is it increases the amount of citizen police interaction dramatically. And we need to think about what are the things that we really want to say that are so egregious that your violation of this norm can lead to your imprisonment? We really need to have a hard p- c- hard conversations about that.
And so those are, you know, that's, that's the Coaston plan, end qualified immunity reform police unions, and let's think about fewer criminal laws. That doesn't solve everything, doesn't solve most things, but I kind of view it as a decent start.
Jeffrey Rosen: [00:46:58] Thank you so much David French. Janai Nelson, your final thoughts.
Janai Nelson: [00:47:02] Well, I will encourage everyone who's listening and I'm so encouraged by the fact that there are over 1,000 people here to encourage us in this moment to completely rethink public safety, to think about how we spend money as taxpayers to fund a system that is fundamentally broken. None of us is suggesting that we don't want some form of safety, that there doesn't need to be some form of control or some form of law enforcement, but we have invested so much in a very particular way of policing society that is not working for so many in society and is creating divisions that are deep and destructive.
And you may hear calls for defunding the police. And I want to unpack very quickly what that means, at least for the Legal Defense Fund what that means. That does not mean that there can't be a, a, a safety mechanism. What it means is that we put too much money in social support, I mean, too much money away from social support services and not enough money investing in the mental support services, the social support, the educational resources, and the things that can make society truly great.
When we think about the amount of money, for example, that the city of New York spent in settling police misconduct cases in the year of 2018, we spent $230 million settling police misconduct cases. The city of Chicago spent $113 million settling those types of cases. Imagine if we used that money to invest in public schools, to invest in social services, to invest in ways to build and lift society, and to take people out of the margins and into the center. We wouldn't have the problem of policing that, that we have, have today if we were to redirect those resources.
So, I encourage us to think about whether we actually need a person with a gun enforcing traffic laws, whether we need police at schools to ensure that children behave safely. My answer is we absolutely don't. This is the time to rethink, completely re-imagine public safety in America.
Jeffrey Rosen: [00:49:15] Thank you very much for that, Janai Nelson. Ted Show, Shaw, the last words in this memorable discussion are to you.
Ted Shaw: [00:49:22] Well, thank you. And thank you again for allowing me to participate. You know what Janai Nelson just said made me think about you know Great Britain. They have law enforcement officers they don't have the shootings we have and and the numbers we have because their first instinct isn't to shoot people. So, we should rethink policing. But I also want to lastly connect what has happened with this long history of killings, and deaths of unarmed black people.
I want to put in here also, it's not just men, there's women also as we know, because of Breonna Taylor, but we can mention a whole bunch of other people. But I want to draw a line between the police officer who knelt so cavalierly on the neck of George Floyd, and Floyd, and took his life. I want to draw a line between him and the individuals who killed Ahmaud Arbery. We just got news yesterday, more information about what one of them said after he stood over his body.
And want to draw a line between the, the ways in which private individuals who take on the task of policing also act out in ways that take the lives of black folks. They're connected, and we can't forget about the events that are going on in this country now with respect to policing. And at the same time we need to talk about changing laws and practices that go to how private individuals act and assume the color of law even if they are actually not law enforcement officers and take the lives of black people.
So, thank you for this discussion. Thank you for the the opportunity to participate. There's a lot to despair about, but we have to choose hope. That's my own personal belief. It's not that, you know, we, we don't have things to be hopeless about but that's not a viable choice. And so thank you for what you do and and foci- refocusing us on hope.
Jeffrey Rosen: [00:51:50] Beautiful words in which to end a memorable discussion. I need to thank all of you wonderful panelists Monica Bell, David French, Janai Nelson Ted Shaw, and Judge McKee for a memorable, and civil, and inspiring discussion. Friends, we did not know what to expect when we invited you here in the middle of the day, on short notice, to discuss the most difficult constitutional issues in American life. And I'm heartened by the rigor and civility of the discussion. 251 questions in the chat box, each of them on point, serious, and hungry for learning, and an open spirit.
One of you has asked can we share the chat questions? And we will, we will do that. I've just copied them and we'll post them on the website or email them to you. And so, I need to end by thanking you friends of the Constitution Center, friends of learning Americans for educating yourself about the constitution. The Constitution Center stands here ready to help you by serving our urgently important role as a convening space. We will continue to hold these discussions. Several of you are already asking for them. Our next one is scheduled on June 30th in co-sponsorship with the Atlantic Magazine.
We're going to hold a symposium that we'll continue to explore the issues that we've taken up-to-date. That'll be June 30th at 7:00 PM. So, stay involved with the Constitution Center, stay engaged and most importantly of all, continue to educate yourself about the constitution. To all of our panelists and friends, thank you so much. Stay safe. See you soon. Bye.
Today's show was engineered by the National Constitution Center's AV team, and produced by Jackie McDermott. Research was provided by Maggie Gillespie, Lana Ulrich, and the constitutional content team. This week's episode is a crossover with our Companion Podcast live at the National Constitution Center. All of us at the NCC are here to learn with you by continuing to convene these urgently important constitutional conversations in the weeks, months, and years ahead.
You can find these conversations every week on We The People, and you can also find them on live at the NCC, which is the audio feed of all the public programs we host here on constitutional topics. So, the homework of the week for our We The People friends, please subscribe to live at the National Constitution Center so that you can educate yourself as deeply as possible about the constitutional issues confronting America. There is so much for us to learn about together. And always remember that the National Constitution Center is a private nonprofit.
We rely on the generosity of people from across the country who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
