HLS professors win case for former Buffalo police officer fired for intervening in a chokehold

‘If only George Floyd had a Cariol Horne, he might still be alive today’

On April 13, as the trial of former Minneapolis Police Officer Derek Chauvin for the killing of George Floyd was underway in Minneapolis, a New York judge issued a ruling in a 15-year-old case with striking similarities and one glaring difference.

In 2006, former Buffalo Police Officer Cariol Horne intervened to stop a fellow officer who was using a chokehold against a handcuffed Black man, Neal Mack. An internal investigation found that Horne violated police policy and offered her a four-day suspension. Horne, a 19-year-veteran of the force, refused and insisted on a public hearing, and in 2008, months before her pension vested, she was fired. Despite the resulting financial and personal hardship, Horne never veered from insisting she did the right thing and working to clear her name.

Last summer, two Harvard Law School Professors, Ronald S. Sullivan Jr. ’94  and Intisar A. Rabb took Horne’s case. In a team that included two lawyers from Kirkland & Ellis, W. Neil Eggleston, who served as White House Counsel to President Barack Obama ’91 and is a lecturer at HLS, and Kamran S. Bajwa, they filed suit against the City of Buffalo and the Buffalo Police Department. Relying on an arcane legal theory, they argued the court should reach back in time and vindicate Horne, and the judge agreed. He vacated a 2010 court judgment that affirmed Horne’s firing, annulled the factual findings by which she was fired, retroactively reinstated her to the force from 2008-2010 so that she was entitled to her full pension, and ordered the city to grant her back pay and benefits.

Noting that the city last fall passed Cariol’s Law, which makes it a crime for police officers to fail to intervene when a fellow officer uses excessive force and protects them when they do intervene, Judge Dennis Ward wrote, “The City of Buffalo has recognized the error and has acknowledged the need to undo an injustice from the past. … While the Eric Garners and George Floyds of the world never had a chance for a ‘do over’, at least here the correction can be done.”

Harvard Law Today recently spoke to Sullivan and Rabb about the case and its implications for policing nationally.


Harvard Law Today: How did you happen to take on Cariol Horne’s case?

Ronald Sullivan: The murder of George Floyd was the event that brought this case back to life. Cariol’s case is 15 years old, and frankly, many had forgotten about it, but the similarities between George Floyd — and Eric Garner before that — and this case were remarkable. People began saying, ‘If only George Floyd had a Cariol Horne he might still be alive today.’

Intisar Rabb: I got a call from Rami Nashashibi [founder and executive director] of the Inner-City Muslim Action Network in Chicago [with whom] I had been doing some work in the wake of George Floyd’s killing. Rami [explained that Horne] had intervened to save the life of Neal Mack in exactly the way we would have wanted the officers around Derek Chauvin to save the life of George Floyd. But instead of being celebrated for it, she was penalized for it and hasn’t really worked steadily ever since. I said, we have to take this case, let me get Ron Sullivan on the line. We did a three-way call right then, and by the end of the call we signed onto the case.

Sullivan: Professor Rabb and I were working on a project at the Harvard Law School through the Criminal Justice Institute to get compassionate releases of people in prison, particularly in light of COVID, and we partnered with the Kirkland and Ellis law firm and [Kirkland partner] Neil Eggleston, who is a lecturer of law at HLS. [After learning about Horne] I said, I’m in 100 percent, we all agreed, and we went to work. And I did something that I teach lawyers not to do and something that I generally do not do, and I made a guarantee. I told Cariol, ‘I’m going to get you justice.’

female police officer headshot

Credit: Cairol Horne via Facebook In 2006, former Buffalo Police Officer Cariol Horne intervened to stop a fellow officer who was using a chokehold against a handcuffed Black man.

HLT: How did you resurrect her claims after so many years had passed?

Sullivan: Intisar Rabb and I had collaborated previously in getting a client out of prison after 25 years or so on a novel nunc pro tunc theory, which is an equitable legal doctrine that places a litigant back in time and corrects an error as though it never happened. We thought maybe we could transport [Horne] back to 2010, when the New York Supreme Court affirmed the [administrative termination], and that’s precisely what we did. We drafted a petition to vacate the 2010 order and reinstate Cariol nunc pro tunc, and ultimately, that is what the court did. It reinstated her pension [and] she will get her back pay from when she was illegally and inappropriately fired.

HLT: What are the basic facts of Horne’s case?

Sullivan: In 2006, Officer Horne was dispatched to an arrest scene. When she arrived, she saw an African American man handcuffed, and then saw Officer Greg Kwiatkowski putting that unarmed, handcuffed Black man in a chokehold. Cariol Horne yelled for him to stop and then she physically removed the officer’s arm from around Mr. Mack’s neck. Officer Kwiatkowski responded by punching Cariol Horne so hard that [she] required facial reconstructive surgery. Rather than Kwiatkowski being disciplined for unreasonable force and for punching a fellow officer, the opposite happened. Cariol Horne was brought up on charges of interfering with an arrest and Kwiatkowski was promoted to lieutenant. Now here’s where Cariol Horne’s character shines forth: She had an opportunity to take a four-day suspension and she refused. She said what she did was proper and she demanded a public hearing.

HLT: She was fired after the hearing and the Supreme Court of New York affirmed her termination. What happened to her then?

Sullivan: She lost her job and she lost her pension. Cariol spent years in economic destitution, she was homeless, some of her children had various difficulties owing to their precarious financial situations. But all the while, Cariol kept pressing for justice. She had a couple offers to quietly dispose of the case, and as a testament to her character she refused. She said this case is not about me and me alone; rather, it’s about all the officers coming behind me who are afraid to stand up and do the right thing.

Rabb: She struggled to get a job. She worked as a trucker for some time [and] did odd jobs and didn’t have the best living situation even though she had five kids. So, she suffered enormous financial harms and quality-of-life harms. [There was] this false narrative about what she did and that she was the bad guy, or bad girl or woman … [but] she had this conviction that she did the right thing. She says, ‘Because I saved a life, it was worth it and I would do the same thing all over again, even if these were the consequences all over again.’ I think she’s a hero of our times, and we want to see more police heroes like her.

HLT: How did Neal Mack, the Black man whom Kwiatkowski had in a chokehold, respond to what Cariol Horne did?

Rabb: He always says every chance he gets [that] ‘Cariol Horne saved my life, there was no doubt, I could not breathe [and] I was saying I can’t breathe.’ He’s doing well [and] living well in Buffalo.

HLT: And some time later, Kwiatkowski was sent to prison for using excessive force against Black men?

Rabb: In fact, Kwiatkowski used excessive force against another police officer [not Horne] on one occasion, for which he was disciplined. And ultimately, he got sentenced to a four-month prison term for using excessive force against four Black teenagers … The judge references it in [Horne’s] case to say, ‘If we had known then what we know now about the practice and pattern and character of this person . . . we never would have ruled to terminate Miss Horne back then.’ So he vacated all of the facts on which [Horne’s firing and unsuccessful appeal] relied because they’re fundamentally unreliable and incorrect now. That’s the sort of retroactive correction that this nunc pro tunc doctrine can help fix.

HLT: How does the timing of this ruling feel, coming as it does while Derek Chauvin is on trial for killing George Floyd?

Sullivan: I can’t even count at this point how many emails I got from people saying ‘thank you for giving us just a little bit of good news.’ Because not only were we in this period of reliving the trauma of George Floyd, but we just learned about Duante Wright, another unarmed African American male, being gunned down. Over time, the weight of the dehumanization of Black bodies becomes unbearable. So, I got scores of emails saying ‘thank you for just letting us smile, even if briefly, thank you for giving us something to cheer about.’ I think that the timing of this was fortuitous, in the sense that it provided a bit of a counterbalance to all the bad news that we continue to receive on a long-term basis.

HLT: What did Cariol’s case say about the Floyd case?

Sullivan: It was one of the most powerful opinions I think I have ever read. The court said that we are now living in an era in the wake of unjustified killings. [The judge] characterized the deaths of Gardner and Floyd as unjustified, saying that we know better now, and we have to hold officers to a higher standard. So it was a brave and powerful opinion by the judge, and it was appropriate, given the bravery and the power of Cariol Horne.

HLT: Tell us about Horne’s bravery. 

Sullivan: She is my hero to have withstood everything she’s withstood over the last 15 years. [She had] the opportunity to get some temporary solace [by admitting wrongdoing, but] she refused because of the strength of her character. She believed that there are broader issues at stake. And she suffered personally because she wanted to keep fighting for everyone else.

HLT: What influence do you hope this case will have? 

Rabb: I think this case can and should be precedential, not in the sense of the Supreme Court requiring folks to follow it but of showing how injustices can be corrected even after a long time has passed . . . and why it’s really important that we do so every single time and every single case. It should not take an all-star team of lawyers to get there. It should be entirely ordinary. That’s what I’d like to see.

HLT: What is Cariol’s Law, which the Buffalo City Council passed last fall?

Sullivan: Cariol envisioned Cariol’s law, which did two things. One, it required officers to intervene when they see fellow officers engaged in the use of unreasonable force. Second, it protected the intervening officer from adverse employment consequences. She pushed and pushed and pushed for Cariol’s law but she didn’t get much headway.

Rabb: It was an underground effort that Cariol and her team began back in 2016. It gained momentum after George Floyd’s killing. We advised on the law and on some of the provisions. It created a retroactive cause of action for incidents like hers that occurred up to 20 years prior and made some findings on factual findings that have been in dispute all this time about whether Cariol acted correctly or not. In and of itself, it vindicated her position and her actions, even though she had been vilified [by] folks that said she jumped on Greg Kwiatkowski [and] they had traded punches. She’s maintained all along that didn’t happen. She just removed his arm from the chokehold.

HLT: What effect might Cariol’s Law have for police officers?

Sullivan: It’s a huge victory for the many — the super-majority, I would argue — of police officers who want to do the right thing. This sort of ruling empowers them to actually do the right thing without fear of reprisal.

Rabb: In some ways Cariol’s Law is a boon and benefit and a protection for police officers. Who wants to walk around with that sort of death on their hands, who wants to support a fellow police officer by watching them needlessly take a life?

HLT: In addition to more laws like Cariol’s Law, what else is needed to stop so many killings of Black people by police?

Sullivan: Officers have to be better trained starting with cadet training, and continuing education [for officers] has to be more robust. We have a threshold problem in the United States of America [in which] we see color as a proxy for criminality. That is the reason that police approach vehicles with African Americans inside with their firearms pointed at the windows, they expect that Black and brown skin is a marker for criminality. We have to undo that sort of thinking. Police officers have to be trained to treat people as individuals and not use lazy markers for danger.

HLT: What other changes do you want to see?

Sullivan: Our law regards certain neighborhoods as high-crime neighborhoods that justify increased police suspicion [and] our laws permit a wide array of arrestable offenses that really could be and should be disposed of by tickets. For example, the George Floyd case was about an alleged fake $20 bill. There is no good reason that a simple desk appearance ticket could not have been written, [but] police came in with guns pointed and using force. Same with Eric Garner [illegally] selling cigarettes, allegedly. Write them a ticket and go on about your day. You’d have two more souls walking around the Earth at this point if we had laws that did not allow police to just arrest everyone for minor nonviolent offenses.

HLT: What are other essential reforms you recommend?

Sullivan: We have to get back to community policing [including] police officers who preferably live in the neighborhoods where they patrol, but at a minimum police officers who spend significant time getting to know the community and the occupants therein. This is how police officers are able to exercise discretion properly. You can only do that when you care about the neighborhood. What we have now are people coming in policing other citizens who they don’t believe to be human beings. I know that is a statement that people will contest and I don’t care. My strong view is that very many people do not regard citizens of color to be human beings of the same type as they and this allows people of color to be treated in such inhuman and brutal ways. My belief is that if police officers get to know citizens, they will begin to see their humanity and you treat people differently [when] you know that they have loved ones and are loved, when you know that they have cares and aspirations and sorrows and joys. This is the space that I hope and pray that we can get to. And I believe that we will, but it will not happen by magic. It takes work. And if George Floyd is to leave a legacy, I hope that legacy is it will inspire us as a country to do the hard work to get this thing right and do a lot better.

HLT: How did Cariol Horne react to the ruling?

Sullivan: Cariol is just delighted. I think we spent the first 20 minutes just crying, literally. We barely could get a word out. But it was just such a release. In part it goes to what I said earlier, that the George Floyd trial was going on, and Duante Wright just happened, so for someone to get even a smidgen of justice felt good. And it was cathartic. She feels vindicated, and feels as though she has her name back. And now she’s ready to keep fighting for other officers out there who want to do the right thing.


Litigators of the Week: This Kirkland/Harvard Law Team Vindicated a Fired Cop Who Intervened When a Colleague Used Excessive Force

via Law.com