Resolutions addressing qualified immunity for law enforcement officials, their use of lethal force, and hate crimes were among those passed by the ABA’s House of Delegates at its Annual Meeting in August.
Qualified immunity must go
The House of Delegates is the ABA’s policy-making entity. Its 600 members represent state, local, and special- focus attorneys across the country. In its resolutions, it often urges policymakers to take action or takes public positions on issues of the day.
At its first virtually held meeting, the House of Delegates passed Resolution 301A, which urges governments to enact legislation to eliminate or substantially curtail the defense of qualified immunity in civil actions brought against law enforcement officers.
Behind the resolution is a belief that qualified immunity is an obstacle to civilian redress against police officers who act improperly. The doctrine is codified under 42 U.S.C. § 1983 and has been interpreted by the U.S. Supreme Court to protect government officials from lawsuits when officials acted reasonably within the scope of their duties. The doctrine seeks to balance the need for accountability of public officials and the need to shield these officials from harassment and liability while performing those duties.
Laura Farber, a partner at Hahn & Hahn in Pasadena, Calif., and a member of the House of Delegates, said the purpose of qualified immunity has been lost in modern day law enforcement. “Yes, we want to trust the police and realize they put themselves in harm’s way all the time,” Farber noted. “But this is about a system that fosters the potential for what’s already happened, and it tends to have a larger impact on communities of color and low socioeconomic status.”
More House moves
The House also passed Resolution 116A, which urges state governments to track the use of lethal force in a collective database to improve accountability in law enforcement. Further, the resolution calls for independent investigations of alleged police misconduct, as well as an objective standard in determining whether use of force is excessive.
Many Americans might be surprised to learn that lynching hasn’t been deemed a federal hate crime. Currently, the Emmett Till Lynching Act is stalled in Congress. In response, the House of Delegates passed Resolution 10I urging the federal government to criminalize lynching as hate crime.
“It’s an embarrassment that lynching still happens and we don’t have a law like this in the books yet,” Farber said. “I can’t imagine a world where anyone would have an opposition to this.”
The House of Delegates passed two more resolutions:
- Resolution 301B urges the government to make Juneteenth a federal paid holiday. Many Americans currently celebrate it on June 19 to honor the end of slavery.
- Resolution 301C calls on the U.S. Department of Justice and Homeland Security to desist from the use of force by federal agents to quell constitutionally protected speech by protestors.
The latter resolution came as a response to the deployment of federal troops, who used tear gas and stun grenades on protesters, in Portland, Ore.
The Annual Meeting was conducted using Zoom, but Farber said it was just as productive and meaningful as past meetings. “Of course I missed everyone, but I really enjoyed the virtual meeting,” she said. “We had huge numbers of people watching who weren’t part of the House of Delegates, and that could mean greater participation in the future.”
In addition to her work at the Annual Meeting, Faber is working to help others adapt to working remotely. Faber co-chairs Practice Forward, a new initiative that helps legal professionals develop the tools and perspectives to establish an ethical and productive workplace.
“We need to collectively decide that we’re going to change what has
been going on for 400 years,” Farber said. “I’m hopeful about the future, that we’ll develop some sort of collective consciousness.”