As protests against systemic racism erupt in the United States, Harvard Law professors weigh in

Credit: Win McNamee/Getty Images

The May 26th killing of George Floyd and the subsequent waves of demonstrations both at home and abroad, have again brought a sharp focus to longstanding questions involving systemic racial discrimination, the unequal administration of justice in the United States, and use of executive authority in time of national crisis. Professors across Harvard Law School, many of whom have been working on these issues for years, have been sharing their scholarship regarding these urgent legal questions and their perspectives on the events that have roiled the nation in recent weeks. Below is a sampling of the views expressed by Harvard Law faculty.

Push to Remove Racist Names Draws Support — And Backlash

For more than two decades, Black residents of Rhode Island have argued that the official name of their state, “The State of Rhode Island and Providence Plantations,” connotes slavery and should be changed. It’s a “hurtful term” that “conjures extremely painful images for many Rhode Islanders,” said Democratic state Sen. Harold Metts, who traces his family lineage to a plantation in Virginia and is the only Black man in the Senate. Metts sponsored a bill to amend the state constitution to remove “Providence Plantations” from the official state name. Rhode Island voters will decide in November, but Democratic Gov. Gina Raimondo already has issued an executive order removing the phrase from official state documents, websites and paystubs. Citing the George Floyd killing in Minneapolis, Raimondo said Rhode Island must do more to fight racial injustice…Faneuil Hall, also called the Cradle of Liberty for the many historic events there, is owned by the city and has a visitors’ center operated by the National Park Service. Peter Faneuil, one of Boston’s wealthiest merchants in the 18th century, proposed a marketplace in 1740 and paid for the building. He was a slaveholder and slave trader. Renaming Faneuil Hall is “metaphor for addressing cultural racism in the city,” said Peterson, founder of the New Democracy Coalition, an advocacy group focusing on civic education and electoral justice. Boston Mayor Marty Walsh, a Democrat, said in June he opposes the name change…To David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, “Keeping these names is a way of normalizing the horrors of our history.” Visitors to Faneuil Hall “don’t even know it’s named for a person. That’s how deeply buried our troubled past is,” Harris said in an interview. He co-wrote an essay calling for a public conversation about renaming Faneuil Hall but stopped short of endorsing a change. The headline erroneously said the authors were calling for a name change. “We said we need to have this conversation. By having a conversation, the public has a voice in the decision,” he said. “I don’t want to pretend it’s as important to change a name as to change a policy,” Harris said, adding, “but it doesn’t mean we shouldn’t do both.”

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Week In Review: Pandemic, Politics, And Policing

Here is the Radio Boston rundown for Oct. 16. Tiziana Dearing is our host. This week was about the pandemic, politics and policing. There are now 63 cities and towns designated as high risk for the coronavirus in Massachusetts, which is 23 more than last week. In Washington, just three weeks before the presidential election, the Senate Judiciary Committee started Supreme Court confirmation hearings for Judge Amy Coney Barrett, while the presidential candidates held dueling town halls. Back here in Boston, Mayor Walsh announced that he would adopt all four prongs of a police reform task force report, making changes to police oversight, addressing issues of diversity and inclusion, the use of force and police body cameras. We take listener calls and discuss it all with our Week in Review panelists: retired federal judge Nancy Gertner and Joe Battenfeld, political columnist at the Boston Herald.

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No Special Duty

What are the police for? Producer B.A. Parker started wondering this back in June, as Black Lives Matter protests and calls to “defund the police” ramped up. The question led her to a wild story of a stabbing on a New York City subway train, and the realization that, according to the law, the police don’t always have to protect us. Producer Sarah Qari joins Parker to dig into the legal background, which takes her all the way up to the Supreme Court… and then all the way back down to on-duty officers themselves. Featuring Harvard Law professor John Goldberg.

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Madison Park coach explores Boston gangs in documentary: ‘It’s all about trying to open eyes and save lives’

They say they are family, that they will die for each other. And so they do, young men in Boston street gangs who for decades have arrived at hospital emergency rooms, felled by gunfire. Some have worn tattoos that read like commentaries on the social and economic deprivations that have shaped their short lives. “Born to be hated.” “Dying to be loved.” “Death is nothing. But to live defeated is to die every day.” The images are “burned into my consciousness,” Dr. Thea James, the director of Boston Medical Center’s violence intervention advocacy program, says in a penetrating documentary film, “This Ain’t Normal,” about the causes of gang affiliations in Boston and the possible solutions. The film is produced by Dennis Wilson, an acclaimed history teacher, basketball coach, and football coach at Madison Park Technical Vocational High School in Roxbury, who for 40 years has witnessed and tried to curb the deadly toll of street violence. Wilson said he produced the documentary with a friend, Rudy Hypolite, to shine a light on the systemic and institutional racism they hold responsible for the long reign of Boston’s urban gang culture. Some of Wilson’s former student-athletes are among the dead. “It’s all about trying to open eyes and save lives,” he said… “This Ain’t Normal” won an Audience Choice Award at the Orlando Film Festival and has been presented twice at Harvard University, first by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, then as part of the Harvard Library’s “Anti-Black Racism Documentary Film Series.” David Harris, the institute’s managing director, said, “The film is a powerful antidote to the way people think about our young people and our communities. Every elected official should have to see it and ponder and wrestle with its lessons.”

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Professional Athletes Went On Strike Over Police Brutality. So Let’s Call It A Strike.

When the Milwaukee Bucks announced Wednesday that they would not be playing their NBA playoff game due to the police shooting of Jacob Blake in Kenosha, Wisconsin, the media couldn’t agree on what to call this extraordinary thing that was unfolding. Were the players mounting a protest? Were they initiating a boycott? Or were they carrying out a strike or work stoppage? Other teams in the NBA, WNBA and Major League Baseball followed the Bucks’ lead by refusing to suit up and play in solidarity, calling for an end to police brutality against Black people. Professional athletes across sports are throwing their collective weight around in historic fashion, and it’s good to call these actions what they really are: They’re strikes…Workers typically carry out strikes against their employers, and they usually do it for economic reasons. Here, the players’ beef is not with their leagues or their teams’ ownership. They are not trying to win raises or better health care coverage. They are demanding an end to social injustice. But what’s happening is still a strike, for the same reason it doesn’t fit the definition of a boycott: Workers, not consumers, are applying the real pressure here. NBA fans did not decide to halt the playoffs; the players did. And that matters because it could inspire other workers to push for social justice through their workplaces…Sharon Block, director of the Labor and Worklife Program at Harvard Law School, said the situation brought to mind the walkout led by employees of Wayfair, the online home furnishings retailer, because the company was supplying beds to U.S. detention centers for migrant children. The dispute was about social injustice ― not working conditions ― and the workers were asking the broader community to stand by them in condemning it.
“Whatever the label is, this is about solidarity,” Block said of the athletes’ move. “It’s not just to advance their own interest, but to lead on a bigger public policy issue…They’re asking the public to join them in saying there’s something more important going on than sports.”

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How to reform police liability without involving McConnell or Trump

An article by I. Bennett Capers, John C.P. Goldberg and Benjamin C. Zipursky: Police officers enjoy almost complete immunity from civil suits in federal court. They can shoot someone, taser someone, choke someone, or press their knee into someone’s neck until they can’t breathe. They can brutalize peaceful protesters. And yet, in large part because of the court-made rule of qualified immunity, officers rarely face liability. The calls for ending qualified immunity have not gone unheard. The House of Representatives passed a bill that would eliminate it and enable victims to obtain remedies for violations of their civil rights. But Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate have balked at this change, as has President Trump. Likewise, the Supreme Court recently declined to revisit the subject. The good news is that changing federal law is not the only way to erase the grave accountability deficit for unlawful police violence. There’s an alternative hiding in plain sight: state law. While no state can change federal law, each state has the authority to change its own rules. State tort law has long empowered individuals who have been choked, shot or maimed to sue the person who victimized them. And, while the states have their own sorry track record when it comes to police accountability, it is the prerogative of state lawmakers — not the federal government — to change rules of state law that stand in the way of imposing legal responsibility for police violence. There are already some hints of progress at the state level.

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How Racist are Universities, Really?

An article by Randall KennedyIt is no surprise that universities have become targets of the activism erupting in the wake of the killing of George Floyd. University police forces have been implicated in racist malfeasance. Universities oversee labor forces which reflect the class and racial divisions partitioning society at large. Universities are the site of cultural battles over iconography (Calhoun College at Yale, the Woodrow Wilson School at Princeton, Washington and Lee), and the propriety of taking race into account in admissions. At a time when racial reckonings have visited the NFL and Nascar, The New York Times and Vogue, Minneapolis and Mississippi, it was inevitable that they would visit campuses, too. And they have. Recently, chairs of African American studies departments at Georgetown, Notre Dame, Fordham, and other Catholic universities and colleges asserted that “systemic racism and white supremacy are problems” at their campuses. “Symbolic statements, marches, token town halls, or other typical measures to pacify our campus communities,” they warned, are insufficient “while grave inequities persist.” A letter to the trustees and president of Dartmouth from professors and staff there called for the dismantling of “structures that implicitly or explicitly work against and devalue Black, Brown, and other people of color at Dartmouth.” Faculty and staff members at the University of Chicago set forth “a set of specific and immediate actions the [university] must take to begin to repair and redress its long history of willingly enabling and directly contributing to structural racism.” If their requirements remain unmet, they said, they will decline to participate in university affairs, urge colleagues at other institutions to boycott the university, and prevent the university from using their accomplishments to launder the “neglect and derision of people of color and scholarship and teaching on race.”

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Equal justice requires lawmakers reform qualified immunity for police

An article by Tomiko Brown-NaginAs he forced his knee into George Floyd’s neck, Officer Derek Chauvin appeared chillingly indifferent to both the law and the life hanging in the balance, even when Floyd cried out, “I can’t breathe.” And why would he worry? During his 19 years with the Minneapolis Police Department, Chauvin received numerous complaints. Despite these incidents, his career continued. He never suffered the consequences that might have prevented George Floyd’s death. The protests against police brutality triggered by Floyd’s killing are unlike anything we have seen in this country since the civil rights movement. As in the 1960s, demonstrators, and the nation, face daunting barriers to reform. Today, one such impediment is qualified immunity — a doctrine created by the US Supreme Court in 1967 to prevent frivolous litigation against government officials. It provides broad protection from civil lawsuits, including suits brought against police who violate constitutional rights. Law enforcement officers cannot be held liable for civil rights violations — including death — unless the underlying conduct “clearly” disregards the law. But the degree of clarity that courts require to permit suits for civil rights violations to proceed is excessive to the point of absurdity. The doctrine, continually expanded by the court over time, sets far too high a bar for efforts to hold officers accountable for actions that intimidate, injure, and kill. It excuses conduct, however outrageous, merely because no prior court has ruled on the precise behavior in question. The decision just two weeks ago by US District Court Judge Carlton W. Reeves, in Jamison v. McClendon, captured it all. Reeves wrote that while the civil rights of the Black plaintiff, Clarence Jamison, had been violated by white Mississippi officer Nick McClendon, “Jamison’s claim cannot proceed.”

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A COVID‐19 crisis in US jails and prisons

To fight the ongoing coronavirus disease 2019 (COVID‐19) pandemic, public health officials have implemented a range of social distancing measures aimed at reducing the risk of person‐to‐person transmission of severe acute respiratory syndrome coronavirus 2 (SARS‐CoV‐2). However, physical separation can be nearly impossible in confined spaces such as jails, prisons, and detention centers throughout the United States. Indeed, experts believe that overcrowding, together with a lack of testing, inadequate infection control measures, and shortages of basic supplies for both staff and inmates, has fueled massive outbreaks in US correctional facilities. The revelations have spurred uncomfortable questions about how the facilities perpetuate and exacerbate racial disparities and how inadequate testing can blind public health officials to emerging hotspots…In March, Dr. Alsan and Crystal S. Yang, PhD, JD, AM, a law professor at Harvard Law School in Cambridge, Massachusetts, launched a project with the National Commission on Correctional Health Care to survey jails, prisons, and juvenile detention facilities across the United States. Over a 2‐month period, the collaborators received responses about COVID‐19 case counts, testing, and screening procedures and about ongoing challenges from hundreds of sites in all but a handful of states. So far, the data have revealed at least 2 startling findings. Toward the end of the weekly surveys, the researchers began asking facilities about the race and ethnicity of COVID‐19–positive inmates. “The incidence rate of cases and suspected cases for African Americans was, from week to week, anywhere from 2 to 4 times higher than for white inmates,” Dr. Yang says.

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Fanueil Hall name change needed

An article by Marty Blatt and David J. Harris: In light of the lynching of George Floyd and the subsequent Black Lives Matter uprising, we call on the city of Boston to engage in the ongoing conversation, initiated by Kevin Peterson and the New Democracy Coalition more than a year ago, about changing the name of Faneuil Hall. Indeed, this would be consistent with the decision of Boston to remove the copy of the memorial,  “The Emancipation Group,”  which depicts a standing Lincoln and kneeling black man gazing up at him. If the statue of a figure as revered as Lincoln is being removed, how can we retain the name of Peter Faneuil, a local merchant who became one of the wealthiest men in the colonies buying and selling human beings. Although most of us are aware of the Atlantic slave trade originating in Africa, historian Jared Hardesty has documented that Faneuil’s ship, The Jolly Bachelor, was involved in trafficking enslaved people throughout the West Indies and into New England. This smaller scale, inter-American slaving, Hardesty argues, was the primary way Bostonians participated in the slave trade. Indeed, as a successful merchant, Faneuil also extended credit to other New Englanders engaged in the slave trade and was, as such, a financier of white supremacy. Does having paid for the building warrant retaining the name in perpetuity, when doing so maintains a place of honor and respect? We might well ask whether Faneuil actually paid for the building or whether it was purchased by the lives and freedom of those he transported and sold. Some argue that Faneuil Hall, whatever its origins story, has ironically become known as the cradle of liberty, a historic site whose name has become associated with abolitionists and suffragists who spoke there. In removing the name of Faneuil, so this argument goes, history is being erased. We would counter that by retaining the name of Faneuil, we in Boston do a great disservice to history by concealing his true past. Many visitors to Boston and many Bostonians have no idea that Faneuil was a slave trader.

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A Vast Racial Gap in Death Penalty Cases, New Study Finds

Black lives do not matter nearly as much as white ones when it comes to the death penalty, a new study has found. Building on data at the heart of a landmark 1987 Supreme Court decision, the study concluded that defendants convicted of killing white victims were executed at a rate 17 times greater than those convicted of killing Black victims. There is little chance that the new findings would alter the current Supreme Court’s support for the death penalty. Its conservative majority has expressed impatience with efforts to block executions, and last month it issued a pair of 5-to-4 rulings in the middle of the night that allowed federal executions to resume after a 17-year hiatus. But the court came within one vote of addressing racial bias in the administration of the death penalty in the 1987 decision, McCleskey v. Kemp. By a 5-to-4 vote, the court ruled that even solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution…Killers of white people were more than four times as likely to be sentenced to death as killers of Black people, Professor Baldus found. The new study, published in The Harvard Civil Rights-Civil Liberties Law Review, examined not only death sentences but also whether defendants sentenced to death were eventually executed. “The problematic sentencing disparity discovered by Baldus is exacerbated at the execution stage,” wrote the study’s authors, Scott Phillips and Justin Marceau of the University of Denver. Professor Baldus’s study examined more than 2,000 murders in Georgia from 1973 to 1979, controlling for some 230 variables.

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Harvard Law Professor Analyzes Hingham Firefighters’ Refusal To Remove So-Called ‘Thin Blue Line’ Flags From Trucks

Firefighters in Hingham, Mass., are continuing to display a version of the American flag — black and white with a blue stripe — on their fire trucks. The firefighters say it’s there to show support for the police, but their bosses say it’s an inappropriate political statement and it has to come down. All Things Considered host Arun Rath spoke with Noah Feldman, a professor of law at Harvard Law School, on Wednesday about the controversy.

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Book Review: Prison by Any Other Name

Across the country, violence by police against Black and brown people has stirred up concerns about our nation’s philosophy of policing. Discussions are proliferating about shrinking or abolishing the current system, and even in some quarters, there are calls to “re-fund the police—smarter.” As Massachusetts considers legislation to address police abuses and racial injustice, some stakeholder groups, such as the Charles Hamilton Houston Institute for Race and Justice (CHHIRJ) and Families for Justice as Healing, are questioning the efficacy of these reforms. They warn that a commission-heavy bill will not create real change for communities most devastated by police violence—for one, there is no ban on excessive force without exceptions, nor have lawmakers even considered excessive force in prisons. Whether or not those concerns affect legislation in Mass, they certainly echo the arguments laid out in Maya Schenwar and Victoria Law’s new book, Prison by Any Other Name: The Harmful Consequences of Popular Reforms (New Press, 2020). Schenwar and Law describe the futility of “reformist reforms,” which is what they label policies advertised as “progressive” that nevertheless end up worsening problems… The book asks what kinds of true alternatives could help remove criminalization from the equation and get us away from the need “to create new Somewhere Elses to put people,” a concept they attribute to activist Mariame Kaba. This, I found, was the most frustrating part of the book…In sum, Prison by Any Other Name offers us a deeper understanding of the way racial and social controls keep people disenfranchised and locked up even if they are no longer behind bars. It asks us to change our thinking, and such a request could not come at a more opportune or turbulent time.

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A Harvard Law Professor Explains Why Federal Officers’ Tactics In Portland Are Unlawful

Unidentified federal officers in Portland  — and soon, in Chicago and Albuquerque —have been arresting and detaining protesters in unmarked vehicles, sometimes far away from the federal buildings they’re purportedly there to protect. In one notable instance, two federal officers grabbed a man off the sidewalk and, without identifying themselves or giving a reason, put him in an unmarked van and drove off to question him. The Department of Homeland Security claims the officers’ tactics here are lawful. Harvard Law professor Andrew Manuel Crespo says they are decidedly not. “The person in charge of this newly beefed-up, paramilitary federal police force doesn’t know what an arrest is,” he says of Federal Protective Services Deputy Director Chris Cline. “It means he doesn’t know when they’re violating the fourth amendment — like they unquestionably did.” Listen to Professor Crespo explain why the officers’ conduct is unconstitutional — and why he finds it frightening that authorities seem to think otherwise.

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Is Trump’s Paramilitary Crackdown Legal? It’s Certainly Wrong

An article by Noah FeldmanIf there really is a law enforcement problem in American cities, why hasn’t President Donald Trump sent the FBI to fight crime in Portland, Oregon? Or the DEA to fight violence connected to drug trafficking in Chicago? Why is he sending in special, paramilitary units from the Department of Homeland Security whose job is to enforce immigration laws? A closer look shows why Trump’s use of these officers is so troubling. Federal law enforcement agencies like the FBI and DEA have well defined responsibilities and are institutionally committed to carrying them out, not exceeding them. FBI agents are trained to understand that their job is to investigate federal crimes. DEA agents are trained to know that their job is to investigate federal drug crimes. Agents in both institutions are accustomed to working closely with federal prosecutors. The DHS units that Trump is deploying are something else again. According to the DHS, it has deployed officers from several paramilitary units in Portland, including the Border Patrol Tactical Unit, Border Patrol Search, Trauma and Rescue and Special Response teams. These units, from the DHS departments of Customs and Border Protection and Immigration and Customs Enforcement, have nothing to do with policing ordinary street crimes. Yet that is what they are doing in Portland. The reason these units are part of CBP and ICE is that their job is to target non-citizens. There’s no reason to think they have the relevant training, experience, institutional knowledge or expertise to deal with citizens, protests or street crime. Nor is there any reason to think that these units are accustomed to working closely with federal prosecutors who could be expected (in theory at least) to make sure that their activities complied with relevant federal law.

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‘A Profoundly Un-American Attack On Civil Society’: Why Trump’s Paramilitary Force Is Unconstitutional

An article by Laurence TribeWe are being confronted in city after city with a nationwide paramilitary force, its troops unidentifiable and its vehicles unmarked, directed in deliberately vague terms to protect property and preserve domestic order. It began in Portland, Oregon where chilling video shows men in combat gear seizing unarmed protestors, packing them into rented minivans and driving off. Some victims of these kidnappings remain in the dark about their abductors even after being freed. In one dystopian scene, a Portland man was seized, blindfolded, transported, imprisoned and finally released — without once being told who had abducted him and why. Widespread criticism of these secretive police has not cowed the president. Instead, egged on by his lackeys, Trump plans to expand this paramilitary force. He has mobilized 2,000 agents from Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Coast Guard, placing them on standby to quickly deploy domestically. If Trump’s words are to be believed, these troops are staring down the barrel at Chicago, Detroit, Philadelphia and more. This astonishing federal takeover of public streets and spaces previously devoted to peaceful protest has targeted jurisdictions and individuals selected specifically (and at times admittedly) for their dissent from the policies of the incumbent national regime. Portland has seen 54 consecutive days of protests — the vast majority peaceful — in the wake of the killing of George Floyd. Chicago, Trump’s next target, has seen similar dissatisfaction. Boston, a city with Democratic leadership that proudly proclaims “Black Lives Matter,” could be next on the list. If the militia descends on Boston, our city’s leaders can and should arrest and prosecute anyone who unlawfully assaults and kidnaps civilians. The district attorney of Philadelphia has already promised as much.

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St. Louis couple who aimed guns at protesters charged with felony weapons count

The St. Louis couple who emerged from their mansion in a gated community and aimed weapons at protesters marching past them last month were each charged Monday with one felony count of unlawful use of a weapon. Lawyers Mark McCloskey, 61, and Patricia McCloskey, 63, have said they were merely defending their home on a private street in an upscale neighborhood from a crowd that was marching to Mayor Lyda Krewson’s house to protest racial injustice. Video and photographs showing Mark McCloskey wielding a rifle and Patricia McCloskey aiming a pistol at the marchers created a firestorm of controversy between those who felt the couple was legally defending their home and those who felt they were menacing peaceful protesters…The McCloskeys and their supporters have said that the “castle doctrine” in Missouri law, and elsewhere, empowers a homeowner to stand their ground and use deadly force when threatened. But Harvard Law School Professor Ronald S. Sullivan Jr. said Friday that “the law is crystal clear in Missouri, that a reasonableness argument is necessary for a defendant to take advantage of the Castle doctrine. The defendant has to be reasonably afraid of being in imminent danger.” Sullivan said that despite the McCloskeys’ claim that the entire Portland Place neighborhood was private property, and the protesters were immediately trespassing, “the castle doctrine would still be unavailable. The doctrine removes one’s duty to retreat. But they could only use deadly force if they reasonably felt they were in imminent danger. Based on the video evidence, that’s a very difficult argument to make,” because the protesters were unarmed and did not move toward the McCloskey residence, Sullivan said. “Otherwise,” Sullivan said, “the castle doctrine would swallow up all of the existing law and we’d have a ‘Wild Wild West’ out there.”

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James Baldwin spoke eloquently to his era. Does he speak to ours?

An article by Kenneth MackIn our present racial crisis, the words of the writer and essayist James Baldwin have reemerged and become ubiquitous in American public discourse. Baldwin’s writings, sometimes shorn of context, are now quoted endlessly on social media and have been prominently displayed during protests against police brutality. Documentary filmmakers and feature film directors, including Academy Award winner Barry Jenkins, have mined his work for their craft. The noted writer and theater critic Hinton Als has curated a multimedia art exhibit dedicated to a complex representation of his life and persona. In addition, Baldwin’s queerness — his status as a gay black man — seems to invest his words with a special prescience for us. Baldwin achieved the height of his fame in the middle of the 1960s, when the novelist and former boy preacher’s beautiful and evocative words seemed to capture the stakes of the black freedom movement like nothing else — particularly for white liberals. It is that prophetic aspect of Baldwin that Eddie S. Glaude Jr., chairman of Princeton’s African American studies department, seeks to recover in his book “Begin Again: James Baldwin’s America and Its Urgent Lessons for Our Own.” The strength of Glaude’s book depends on how well he makes the case that Baldwin speaks directly to our times. “Begin Again” is, in fact, two different books. The first takes the reader on a deeply researched tour of Baldwin’s essays and actions from the mid-1960s forward. Glaude wants to rescue Baldwin’s legacy from many critics who contend that his art and insightfulness declined once he became an international icon and felt the need to speak for black America. Indeed, Baldwin’s novels and essays from the late ’60s on often received tepid or negative reviews. He sympathized with the emerging black power movement but endured withering, homophobic criticism from figures like Eldridge Cleaver.

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Understanding ‘Qualified Immunity’ And Its Place In The Police Reform Debate

One area of significant contention in the state senate’s recently passed police reform bill was whether to limit “qualified immunity,”a legal doctrine that protects police and other public employees from lawsuits. Qualified immunity has been both a lightning rod in local and national police reform debates, and a source of confusion about what it actually entails. We turn to Nancy Gertner, a retired federal judge, WBUR legal analyst and senior lecturer at Harvard Law School, on what qualified immunity is, and why many law enforcement officials are trying to hold on to it.

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In May, the North American Scrabble Players Association made a big announcement. Scopely Inc. had agreed to add the official tournament lexicon to its hot new app, Scrabble Go…Within a month, though—and in the wake of the killing of George Floyd and the Black Lives Matter protests around the country—executives at NASPA, supported by some of its membership, were fighting to permanently remove from tournament Scrabble some of the very words they had just fought to gain access to. And this week, Scrabble’s owner, the toy and game giant Hasbro Inc., announced that NASPA would delete “all slurs” from its word list and that the company would rewrite the rules “to make clear that slurs are not permissible in any form of the game.” …I asked Harvard Law School professor Randall Kennedy about the Scrabble debate…He told me it’s understandably reasonable to be concerned that any deployment of a slur gives the word legitimation. He also said it’s healthy to question the use of words in the current climate around social justice—but not at the expense of other values. “My view is that the context in which a word is used always conditions the meaning of the word,” Kennedy told me. “If you were using a term in a setting in which it’s clear that there is no message being sent, and in fact is an agglomeration, a series of symbols—a, b, c, d, e, and the rest—I don’t see what the problem is. If the word is being used in a way that is demeaning, if the word is being used in a way that is putting down people, I’m against that. But if the word is being used in some other fashion, then that should be recognized and understood.” In his book, Kennedy argues against “eradicationists” who want the N-word to be expunged from the language. Doing so, he told me, would diminish James Baldwin, Mark Twain, “Letter From a Birmingham Jail,” Richard Pryor, Eudora Welty, and more. “I would rather more speech than less. I would rather knowledge than erasure,” he said. “I think there’s going to be a tremendous loss in this campaign of bowdlerization, this campaign of euphemism by dint of punishment if you don’t go along with it.”

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Amy Cooper Faces Charges After Calling Police on Black Bird Watcher

When Amy Cooper, a white woman, called 911 from an isolated patch in Central Park where she was standing with her unleashed dog on Memorial Day, she said an “African-American man” was threatening her life, emphasizing his race to the operator. Moments before Ms. Cooper made the call, the man, Christian Cooper, an avid bird-watcher, had asked her to leash her dog, and she had refused. On Monday, Ms. Cooper was charged with filing a false report, a misdemeanor punishable by up to a year in jail, the latest fallout from an encounter that resonated across the country and provoked intense discussions about how Black people are harmed when sham reports to the police are made about them by white people…People are rarely charged with filing a false police report, legal experts said, because the authorities do not want to discourage the reporting of crimes and because it can be difficult to prove that a person made a false report knowingly. But experts said that the evidence in the case against Ms. Cooper was strong and that it could have broader implications in other instances of white people making false police reports against Black people. “To the extent that this woman was arguably deploying racial stereotypes and weaponizing them, it will make people think twice,” said Nancy Gertner, a Harvard Law School professor and a retired federal judge. “It is a big deal.”

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Less Punishment, More Justice

The mass protests spurred by George Floyd’s killing have been more sustained and widespread than any this country has seen before in response to police abuse. When the initial ones prompted even more police violence—officers driving cars into peaceful demonstrators or beating them with truncheons, using chemical agents and flash grenades to clear crowds for a presidential photo op, pepper-spraying young and old alike—the aggression, much of it captured on video, only inspired more people to join the protests…What police officers spend most of their time doing is enforcing minor offenses, known as misdemeanors. Alexandra Natapoff’s Punishment Without Crime, a damning portrait of the oft-neglected world of misdemeanor enforcement, suggests that changing how we treat such offenses may be the most effective way to reduce unnecessary and costly police–citizen encounters. Scholars, lawyers, and crime-show writers don’t generally pay much attention to misdemeanors. Jaywalking and disorderly conduct don’t make for nail-biting drama or fundamental moral dilemmas. But it’s the misdemeanor system that affects by far the most Americans…Bold reform along these lines is possible—if the political will exists. At the moment, it does. But it often won’t. The politics of crime will far more often favor “tough” over “smart” crime policies. As the Harvard law professor and former deputy attorney general Phil Heyman has remarked, “It takes a little time to explain why one thing’s smart and the other thing isn’t. It doesn’t take any time at all to explain why one thing’s tougher than the next.” The tilt toward toughness is also driven by the fact that the institutional voices on crime policy—police unions, prosecutors, and prison officials—all have a vested interest in promoting longer sentences, more discretion, and more resources for the criminal law–industrial complex.

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Honoring the past without overlooking racism

Harvard professor Annette Gordon-Reed, historian Tim Naftali and Fareed on reconsidering honors and monuments to historical figures with racist legacies.

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Kansas State pressured to expel student for George Floyd tweets. But is that legal?

Pressure is mounting for Kansas State University to expel a student whose insensitive tweets about George Floyd last week sparked a national uproar. But a critical question looms: Can the university legally kick out a student for exercising his First Amendment rights? “A student at a public university making an extremely offensive statement on social media is almost quintessentially the kind of thing that should be protected against sanctioning by public authorities,” said Mark Tushnet, a Harvard Law School professor. “And sanctioning would include expulsion from a public university. On the face of it, it seems to me that taking action directly against the student would be a violation of the First Amendment.” Jaden McNeil, a junior in political science and head of K-State’s America First Students chapter — a controversial group he formed earlier this year — posted the tweets Thursday afternoon…Tushnet of Harvard Law said if K-State does expel McNeil and he files a lawsuit, his chances of success would depend on the kind of remedy he was seeking. “If he wanted to be readmitted, then he’d have a pretty good chance of winning,” he said. “If he wanted damages for injury to his career or something like that, it would be a closer question.” Tushnet acknowledged that the incident puts university officials in a difficult position. “That’s why you hire good administrators,” he said. “I can imagine a very good administrator, president, deans, figuring out a way to work with the athletic teams in a way that would leave them satisfied without expelling the student. But that depends on the president’s ability and local circumstances, all of which I don’t know.”

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With Eviction Moratorium Set To Expire, Black And Brown Renters Could Face Housing Vulnerability

Here’s the Radio Boston rundown for June 29. Tiziana Dearing is our host. The Supreme Court struck down a Louisiana law that required doctors performing abortions to have admitting privileges to nearby hospitals. We’re joined by a retired federal judge and WBUR legal analyst Nancy Gertner. According to a new report from MIT and City Life/Vida Urbana, communities of color in Boston are disproportionately impacted by evictions in Boston — and it could get worse with the pandemic. We dig into the report and its implications. In an effort to show how executives of color can lead on eliminating racial inequities, a group of Black and brown business leaders in Boston has come together to create the “New Commonwealth Racial Equity And Social Justice Fund.” We speak with one of the women behind the effort. We “Check The Score” and dig into Cam Newton’s move to the New England Patriots.

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We Need to Build New Statues, Not Just Tear Down Old Ones

An article by Cass SunsteinThe year: 1964. The location: the Oval Office. President Lyndon Johnson, an improbable advocate for civil rights, was meeting with Governor George Wallace, an implacable foe of civil rights. Wallace had requested the meeting. The specific topic was voting rights and the ongoing demonstrations on their behalf. He wanted the president to help stop them. After a little small talk, the governor began the conversation by alleging that many of the “malcontents” had been “trained in Moscow.” Johnson responded that all the protesters wanted was the right to vote. He added that “you can’t stop a fever by putting an icepack on your head. You’ve got to use antibiotics and get to the cause of the fever.” Wallace was disdainful. He said that it was impossible to “deal with street revolutionaries,” who could never be satisfied. You might give them the right to vote, but “then it’s jobs; then it’s distribution of wealth without work.” Increasingly frustrated, Johnson asked Wallace to think about the verdict of history, not about the current moment. He asked: “George, what do you want left behind? Do you want a great big marble monument that says ‘George Wallace: He Built’? Or do you want a little piece of scrawny pine lying there along that hot caliche soil that says ‘George Wallace: He Hated’?” Wallace was shaken. Later he said to an aide, “Hell, if I’d stayed in there much longer, he’d have had me coming out for civil rights.” Johnson’s key distinction — between the builders and the haters — is keenly relevant today, of course. Most important, it captures the split between those who are working for racial justice, including voting rights (and jobs), and the modern-day Wallaces, who in various forms are complaining of “street revolutionaries,” doubting the patriotism of the protesters, and emphasizing looting and acts of violence, as if they are all that matter.

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The phrase ‘criminal justice system’ has to go

An article by David J. Harris: It is becoming increasingly clear that we, as a nation, have arrived at a crossroads.  Between the coronavirus and the private and state-sanctioned lynchings of Ahmaud Arbery and George Floyd sandwiched around the white lives matter moment of Amy Cooper, we seem to be approaching a reckoning of sorts.  That reckoning will be essential if we are to move forward from this place of pain and anguish. And any such movement will certainly require deep and broad reflection and action.  An essential aspect of our reckoning will be interrogating the language we use to describe the social forces we confront.  For several years I have been advocating that we eliminate the term “criminal justice system” from our lexicon. It is a term fraught with powerful negative associations and one that corrupts the meaning of justice. It is difficult, if not impossible, to imagine a system that begins with “criminal” as a pathway to anything but criminalization. As with breaking any habit, withdrawing from “criminal justice” can be painful. It is, after all, accepted as a term of trade. The phrase is used to capture a whole range of activities from policing to prosecution, from charging to conviction, from trial to sentencing and (mass) incarceration. On the front end it captures police, bail, prosecutors, defense attorneys, judges. On the back end, it describes all who function within prisons, parole, probation. This is not an exhaustive list, but it makes the point: however dysfunctional it may be, it certainly has enough components to look like a system.  But, let’s call that system what it is: a law enforcement system.

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How Could a Slaveholder Write “All Men Are Created Equal?”

Could a slaveholder also be an advocate for equality for all? That is the riddle left behind by one of America’s founding fathers, Thomas Jefferson. Pulitzer Prize-winning historians Annette Gordon-Reed and Jon Meacham join Walter Isaacson to discuss Jefferson’s monuments and whether or not they should come down.

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Police unions blamed for rise in fatal shootings even as crime plummeted

Police unions have emerged as the leading opponent of reform efforts as lawmakers respond to weeks of protests over the police killings of Black people across the country. Despite years of demonstrations against police violence, data shows that law enforcement agencies killed more people last year than they did five years ago. Black people are killed at a far higher rate than white people. The rise comes even as violent crime has plummeted across the country for decades. Despite the falling crime numbers, America’s policing budget has nearly tripled over the last 45 years…Police unions have increasingly come under fire after the police killing of George Floyd in Minneapolis. Bob Kroll, the president of the Minneapolis Police union, defended the officers charged in Floyd’s murder and described protesters as a “terrorist movement.” Kroll complained that the officers involved in Floyd’s death were “terminated without due process” and that “what is not being told is the violent criminal history of George Floyd,” whose criminal history mostly involved just nonviolent drug and theft charges…As a result, many in the labor movement have pushed to disassociate police unions from other public sector unions. In Seattle, the King County Labor Council, a coalition of 150 unions representing 100,000 workers, expelled the Seattle police union last week.  “The consequence of police abusing [collective bargaining] power is that people end up dead,” Sharon Block, executive director of the Labor and Worklife Program at Harvard Law and a member of the National Labor Relations Board under President Obama, told Vox. “That is happening at a significant rate and that’s just a completely different context from the rest of the public sector.”

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‘They get a get-out-of-jail-free card’: Why law-enforcement and other government officials are protected from civil lawsuits

As the deaths of unarmed Black people such as George Floyd, Breonna Taylor and Rayshard Brooks have reignited the national debate on excessive force and police accountability, activists have called for an end to qualified immunity, a legal doctrine that protects law-enforcement officers and other government officials from lawsuits over their conduct. The Supreme Court this month declined to hear a handful of cases related to qualified immunity, putting the ball squarely in Congress’s court…Amir Ali, the director of the MacArthur Justice Center’s Washington, D.C. office and a Harvard Law School lecturer, sees it this way: “Qualified immunity is basically a rule that police officers, correctional officials and other public officials are above the law and above the Constitution,” he told MarketWatch. “It says that even when a police officer engages in gross misconduct, whether it be police brutality or murder as we’ve seen time and time again in video after video, that they’re granted immunity from any suits trying to hold them accountable for their conduct.” … “Whether you subscribe to a world of bad apples or you think the whole tree is rotten, we’re already talking about somebody who is a bad enough apple that they’ve done something that no reasonable officer in the circumstance would have done,” Ali said. “But qualified immunity says even that person is going to walk away with impunity — if the victim isn’t able to find a case out there that happens to look pretty much exactly like this case.”

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It ‘s Time To Teach Black History To All Students

For too long, Black History has been an afterthought in mainstream education, granted only a glimmer of sunlight during February, Black History Month. That is because white America collectively is comfortable only with the fraction of history where it can claim some level of partnership, such as the nonviolent, multiracial struggle for civil rights. Not in the national narrative is the unbroken chain of systemic racism in slavery, legally enforced segregation and today’s disparities. Not in the narrative are the centuries of white violence used to maintain white privilege. For instance, most Americans remain unaware of white mob attacks that helped end Reconstruction, the 1919 Red Summer of whites killing Black people from Chicago to Arkansas, the 1921 massacre of Black people in Tulsa, Oklahoma, and white attacks on African Americans and Latinos in the 1940s. It’s time to change that with the George Floyd Education Act, which David Cavell intends to introduce on his first day in the U.S. House if elected from the Massachusetts Fourth District this fall…The George Floyd Education Act will create a national commission to develop a curriculum and recommend how to implement it. We will bring together leading educators, historians, students, teacher organizations, and leaders in the Black Lives Matter movement, NAACP, Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, Smithsonian National Museum of African American History and Culture, the Obama Foundation and others.

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How police unions became so powerful — and how they can be tamed

In the wake of George Floyd’s killing by now-former Minneapolis Police Department (MPD) officer Derek Chauvin, few have been inclined to defend Chauvin or his colleagues who stood by and watched as he suffocated Floyd to death. Few, that is, except Bob Kroll…Kroll’s statements illustrate a central challenge in American efforts to transform policing: Police unions, the groups that represent police officers, are a powerful force that stands in the way of holding police accountable…Some veteran labor lawyers and academic labor activists are also opening up to the idea of sharply limiting police union power, recognizing this as an unusual case. A group of faculty at Cornell’s Industrial and Labor Relations school — Ifeoma Ajunwa, Virginia Doellgast, Shannon Gleeson, Kate Griffith, and Verónica Martínez-Matsuda — argued in a public statement that the labor movement “must also acknowledge that contemporary police unions have contributed to racism.” Benjamin Sachs, the Kestenbaum professor of labor and industry at Harvard Law School and a leading voice in labor law debates, published a blog post suggesting openness to limiting what issues police unions can legally bargain over, perhaps excluding from bargaining matters like discipline for police who beat or kill civilians. “The consequence of police abusing [collective bargaining] power is that people end up dead,” Sharon Block, executive director of the Labor and Worklife Program at Harvard Law and a member of the National Labor Relations Board under President Obama, told me. “That is happening at a significant rate and that’s just a completely different context from the rest of the public sector” or unionism generally.

Continue Reading at Vox »

Institutional racism contributes to Covid-19’s “double whammy” impact on the Black community, Fauci says

Institutional racism in the United States contributes to the disproportional impact that the coronavirus pandemic has had on the Black community, the nation’s top infectious disease expert, Dr. Anthony Fauci, said on Tuesday. When asked about the racial disparities emerging amid the pandemic during the House Energy and Commerce Committee hearing on the “Oversight of the Trump Administration’s Response to the Covid-19 Pandemic,” Fauci responded that the Black community has been facing a “double whammy.” Fauci noted that some Black adults may not be able to social distance if they are essential workers, and there is a disproportionate prevalence of underlying conditions within the Black community, such as high blood pressure, diabetes, obesity, chronic lung disease and kidney disease…The coronavirus pandemic has made it more clear than ever before that the United States needs to invest in communities — especially in ways that could reduce health disparities, one expert on racial justice said last week. “I think we need to think about devoting more resources to addressing the issues that create the disparities and prevalence in susceptibility to coronavirus,” David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, said on a Facebook Live discussion. “It’s the way in which the institutional racism, for lack of a better word, seeps down into some very, very specific and particular differences in treatment,” he said.Addressing racism and Covid-19 in a talk about inequities and policing on Thursday, Harris highlighted issues that have put Black communities at a disadvantage as the pandemic has gone on.

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The George Floyd Moment: Promise and Peril

An article by Randall KennedyEvery day in every part of America, people of all backgrounds, but especially people of color, are menaced by poorly regulated police. Absent the fortuity of a video recording, the circumstances of George Floyd’s death would have probably been effectively covered up and buried. Even with the evidence at hand, securing a conviction and appropriate punishment is by no means guaranteed; police caught red-handed abusing civilians have frequently escaped accountability. At the same time, the response to Floyd’s killing has been extraordinary. People of all races, all ages, all gender identifications, and all party affiliations have raised their voices—as one. Hundreds of thousands have taken to the streets braving the risks associated with the pandemic and panicky law enforcement. They act out of grief for Floyd, determined that his killers be punished. They act out of pent-up frustration and fury, keenly aware that despite increased scrutiny of policing over the years, the grisly chronicle of avoidable police killings grows apace. They act out of solidarity with mistreated fellow demonstrators and out of a sense that their dissent is making a real difference. They act out of revulsion for the antics of President Donald Trump, who, far from displaying any compassion, tried to vilify and intimidate protesters and appeal to the nethermost instincts of his electoral base. The breadth and intensity of the expressions of bereavement, solidarity, sympathy, and hopeful demands for reform are what have made this period feel so promising. Organizers from across the spectrum of progressive activism have, to a large extent, conducted themselves admirably, eliciting broad participation, and infusing supporters with fervor and resolve. After years of often overlooked work associated with or inspired by Black Lives Matter, they have clearly honed their skills and become remarkably effective agitators. These are the organizers most responsible for drawing and channeling the massed dissent.

Continue Reading at The American Prospect »

Rewriting history — to include all of it this time

Ninety-nine years after a mob of poor white people killed 150 to 300 African Americans and destroyed the “Black Wall Street” in Tulsa, Okla., the city again made headlines when President Trump announced he would kick off his re-election campaign there on Juneteenth — the day that marks the final end of slavery in the U.S. Although the rally was subsequently rescheduled for Saturday, Trump’s actions brought renewed attention to the 1921 massacre in Tulsa’s Greenwood District, a tragedy that generally has been overlooked in American history classes. This oversight, said participants in a Weatherhead Initiative on Global History webinar on Thursday, is emblematic of — and continues to contribute to — America’s racial divide…Smashing communities and burying their histories erases stories of Black success and possibility, the panelists said…Addressing “the disinvestment and what we’ve done to our cities,” David J. Harris, managing director of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice, which cosponsored the webinar, pointed out the ongoing repercussions. Most recently, he said, “COVID-19 has revealed how these disparities have caused great harm.” “We can never let up,” said Harris. “There’s no way forward until and unless we truly reckon with all of this history.”

Continue Reading at Harvard Gazette »

Growing Up with Juneteenth

An article by Annette Gordon-ReedWhen I was a little girl, in Texas, I thought Juneteenth belonged to us, meaning to the state of Texas generally and to black Texans specifically. In my small town, the story of Gordon Granger, the U.S. Army general who announced, in Galveston, on June 19, 1865, that slavery was over, was told with seriousness and bits of gallows humor. The older people joked that the Emancipation Proclamation had actually been signed two years before, but “the white people” wanted to get a few extra harvest seasons in before they told “the Negroes” about it. My father would say, with a sardonic smile and a short laugh, that it was worse than that: “the slaves have never really been freed.” The jokes played upon several basic truths. The Emancipation Proclamation had, in fact, been signed more than two years before, but its provisions could only be applied in areas controlled by the U.S. Army. Confederate forces in Texas did not surrender until June 2, 1865. Even after Granger’s announcement, many whites in Texas continued to enslave people who had not heard the news. Those who had heard were often forcibly prevented from acting as if any material change had taken place. Freedom had come in legal terms, but the story was not so clear on the ground as it was on paper. Former enslavers unleashed violence upon the people whom they had claimed as property, and others threatened to do so in order to make people work. Amid joy and hope was great malevolence and power. As my father’s jibe suggested, the legacies of slavery still lingered, putting true freedom out of reach. I don’t recall white Texans celebrating Juneteenth. Then again, I wouldn’t know; the holiday was part of the summer, and summer took kids in my home town out of the schools and back into our racially separated communities.

Continue Reading at New Yorker »

How We Can Reform Police Unions To Address Systemic Racism

The weeks of outrage after a white Minneapolis police officer killed George Floyd have made police reform feel more urgent and achievable than ever. As city and state officials across the country debate how to prevent police brutality, law enforcement unions have emerged as a key impediment to reform. The political power of police unions has helped them secure strong job protections ― too strong, reform proponents said…Rather than strip away bargaining rights from police unions, Malin said reform proponents might consider expanding the universe of what those unions bargain for. In general, employers have to discuss only certain mandatory subjects, such as wages and other working conditions. But there could be a way to bring broader community concerns into play…The concept is known as bargaining for the common good. By working together, unions and community groups can advance common goals that benefit both workers and the people they serve…Bargaining for the common good is a central feature of Clean Slate, a sweeping proposal for labor law reform that the Harvard Law School’s Labor and Worklife Program is spearheading. The professors leading that, Benjamin Sachs and Sharon Block, said communities could be looking at ways to apply the concept to law enforcement in order to curb killings and address racism. They are now leading another project to brainstorm ideas for reforming police unions. “The problem is not public sector unions,” Block said. “The problem is police unions, and the lack of accountability structures that police unions have negotiated.” Of course, plenty of police unions may not willingly bargain in the interest of reform supporters. In that case, maybe they could be forced to ― either by opening up bargaining sessions to public oversight or by formally giving community groups a seat at the table when unions hammer out contracts with cities. “Bringing community groups into the bargaining process is something definitely worth considering, … the idea being that certain collective bargaining processes have such profound impacts on the community,” Sachs said. “The argument for it seems pretty clear.”

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Ben Crump has become the go-to attorney for racial justice: ‘I feel like I’m running out of time’

A week in the life of Ben Crump — last week, to be precise. Tuesday in Houston to attend George Floyd’s funeral, where the Rev. Al Sharpton introduced Crump as “black America’s attorney general, probably because we don’t feel like we have one.” Wednesday in Washington to testify before the House Judiciary Committee on racial profiling and police reform. Thursday in Louisville, to convince the city council to pass a law in Breonna Taylor’s name banning no-knock warrants, which passed unanimously. Friday, a return to Houston. The coronavirus pandemic slowed much of the world but the killing of black Americans continued, often at the hands or bended knee of the police. And it didn’t slow Attorney Crump, as he’s known to clients and associates…Police brutality in America, Crump argues, dates its origins to colonial slave patrols in the early 18th century. But “videos have changed everything. They’ve shifted believability,” says Kenneth Mack of Harvard Law School. Generating publicity in advance of trial has a history among civil rights attorneys, including Marshall, Mack says. “Crump’s engaged in multimedia advocacy,” he says. “Putting pressure on state authorities to investigate cases that otherwise would not be investigated.” In a case like Floyd’s, while Minnesota is prosecuting the officers, Crump appeals to the House for reforms and the U.N. to intervene. The legal team often files or sues for public records, advocates for tougher sentencing and uses the media to challenge police accounts.

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Coronavirus Conversations: How systemic racism intersects with the pandemic

Calls for social justice and police reform have gained momentum as unrest continues across around the world in the wake of the killing of George Floyd. These calls are intersecting with the coronavirus pandemic. As part of our regular series discussing the coronavirus crisis, The World’s health reporter Elana Gordon moderated a live conversation with David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.

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Must we allow symbols of racism on public land?

The police killing of George Floyd sparked widespread protests and reignited efforts across the U.S. to remove Confederate and other statues viewed as symbols of slavery and racism. In several cities, these tributes have been vandalized or torn down by protestors or removed by public officials. A high-profile decision to tear down a famous bronze figure of Robert E. Lee in Richmond, Va., was halted by a court challenge, which was extended indefinitely on Thursday. A 2018 report from the Southern Poverty Law Center found there are more than 1,700 monuments to the Confederacy still in public spaces. Annette Gordon-Reed, a historian of U.S. slavery, legal scholar, and member of the Presidential Initiative on Harvard and the Legacy of Slavery, spoke with the Gazette about the issue. Gordon-Reed is a professor of history and the Charles Warren Professor of American Legal History at Harvard Law School. She won the Pulitzer Prize and National Book Award for her explosive 2008 work, “The Hemingses of Monticello: An American Family.”

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How Police-Union Power Helped Increase Abuses

Police unions have long had a singular—and divisive—place in American labor. What is different at this fraught moment, however, is that these unions, long considered untouchable, due to their extraordinary power on the streets and among politicians, face a potential reckoning, as their conduct roils not just one city but the entire nation…To critics, all of this highlights that the disciplinary process for law enforcement is woefully broken, and that police unions have far too much power. They contend that robust protections, including qualified immunity, give many police officers a sense of impunity—an attitude exemplified by Derek Chauvin keeping his knee on George Floyd’s neck for nearly nine minutes, even as onlookers pleaded with him to stop. “We’re at a place where something has to change, so that police collective bargaining no longer contributes to police violence,” Benjamin Sachs, a labor-law professor at Harvard, told me. Sachs said that bargaining on “matters of discipline, especially related to the use of force, has insulated police officers from accountability, and that predictably can increase the problem.” …Benjamin Sachs, the Harvard labor-law professor, argues that the union movement needs to join the push for police reform. “When unions use the power of collective bargaining for ends that we…deem unacceptable it becomes our responsibility—including the responsibility of the labor movement itself—to deny unions the ability to use collective bargaining for these purposes,” he wrote. “We have done this before. When unions bargained contracts that excluded Black workers from employment or that relegated Black workers to inferior jobs, the law stepped in and stripped unions of the right to use collective bargaining in these ways.” Sachs proposes amending the law to curb the range of subjects over which police unions can bargain, perhaps even prohibiting negotiations over anything involving the use of force.

Continue Reading at New Yorker »

‘Juneteenth is a day of reflection of how we as a country and as individuals continue to reckon with slavery’

In a Q&A, Radcliffe Dean and Harvard Law Professor Tomiko Brown-Nagin reflects on the history and relevance of June 19, 1865:  “The antecedent historical event is the Emancipation Proclamation, which [President Abraham] Lincoln had signed in 1863, as the nation entered the third year of a civil war, declaring that persons held as slaves within the rebellious states were henceforth free. …It is significant, in my view, for making a point that many civil rights scholars and scholars of social change and legal change often have made—and that is that freedom is a constant struggle. There’s no one moment in time that that would stand for the proposition that people are in fact free. It takes action over time. And every generation struggles to achieve freedom anew. But as they were in Texas, the vestiges of bondage and segregation remain intact.

Continue Reading at Harvard Law Today »

Juneteenth in a time of reckoning

To do good in the world, 'use what you care about as your compass'

… To understand the significance of Juneteenth, a blending of the words June and 19th, we asked some members of the Harvard community what the holiday means to them. …David Harris, Ph.D.’92, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School: “Juneteenth is a defining day. However empty the promise of freedom often appears to have been, Juneteenth has remained a day uniquely celebrated by the descendants of the formerly enslaved.” …Kenneth Mack, Lawrence D. Biele Professor of Law at Harvard Law School; affiliate professor of history at Harvard University: .”.. We commemorate Abraham Lincoln in various ways, but we don’t have a national commemoration of the triumph over slavery, which has to be one of the most important moments in American history. One should consider Juneteenth in that context. The best case to be made for Juneteenth would be as a commemoration of both the legacy of slavery and the success of the movement to abolish formal slavery in the United States.”

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The AFL-CIO’S Police Union Problem is Bigger Than You Think

After the near murder of a 75-year-old man on a sidewalk in Buffalo, New York, the city’s police union, the Buffalo Police Benevolent Association, responded with organized demonstrations of support for the officers who shoved the elderly man to the ground. After the murder of George Floyd, the Minneapolis Police Officers Federation was defiant, with President Bob Kroll, who had recently defended his role in three police shootings, attacking Floyd as a criminal, and lashing out at local politicians for not allowing the police to be rougher on protesters. The Sergeants Benevolent Association in New York City, which has attracted reprobation for doxxing NYC Mayor Bill de Blasio’s daughter Chiara, has also moved to a furious war footing. The Louisville Metro Police Union in Kentucky rallied around the killers of Breonna Taylor, as the officers involved haven’t been fired, let alone charged…Ben Sachs, a labor and industry professor at Harvard Law who recently launched a project to reform police union collective bargaining to end police abuses, understands the concerns of union leaders and others that a push to reform police union collective bargaining could endanger a broader subset of workers. “It is absolutely critical that any reforms remain tightly focused on the actual problem here, which is police violence. Any changes to police collective bargaining law should apply only to collective bargaining practices that directly implicate police violence. We can’t allow changes to police collective bargaining to become a stalking horse for those with a political agenda to undermine other public sector unions,” Sachs said. “At the same time, this is an immediate and enormous crisis. That has to be dealt with in a robust way. If that means that being open to some changes to police collective bargaining laws, it’s incumbent on us to be open to that.”

Continue Reading at The Intercept »

What Thurgood Marshall Taught Me About Police Accountability

An article by Cass SunsteinIn the early 1980s, I was one of four law clerks for Justice Thurgood Marshall, probably the greatest civil rights lawyer in U.S. history and the first African American to be appointed to the Supreme Court. In a discussion with our boss, we expressed concern that the high court might overrule its Miranda decision, which requires police officers to provide the famous warnings to people in custody. We thought that the Miranda warnings were an essential means of preventing official abuse in general and of protecting African Americans in particular. Marshall looked at us with amusement. This is what he said: “Miranda? I like Miranda well enough. But not all that much. When I lived in New York City, a long time ago, I had a nice, long talk with head of a local precinct about police misconduct and the United States Constitution. Here’s what he did the next week. He got all his cops in a big room, and said, ‘If I hear that any of you has mistreated anyone in New York – beaten him up, knocked him down, violated his civil rights, targeted him because of his race, anything like that – you’re fired. Immediately. On the day.’” Marshall took a long pause. And then he thundered: “And that’s a lot better than Miranda!” In the 1990s, I lived on the south side of Chicago, and my car was stolen. A police officer recovered it. As we talked about what had happened, he asked me, “And what do you do for a living?” I responded, “I teach constitutional law.” He looked displeased. I thought I knew why, and asked, “Oh, does the Fourth Amendment give you any trouble?” (The Fourth Amendment forbids unreasonable searches and seizures.) His answer: “Oh, no, not at all. I didn’t violate the Fourth Amendment unless I say that I violated the Fourth Amendment, and I never say that I violated the Fourth Amendment.”

Continue Reading at Bloomberg »

How the Charges Against Derek Chauvin Fit Into a Vision of Criminal-Justice Reform

An article by Jeannie Suk GersenI first saw the “Hospital Arraignment” shift listed on my schedule as a rookie prosecutor in Manhattan, in 2004. I soon learned that criminal arraignments routinely took place around a hospital bed, because it was common for a person to be seriously injured during his or her arrest. A judge, prosecutor, defense lawyer, and court reporter would travel in a car to a local hospital, where the person lay handcuffed to the bed, and proceed to conduct the court hearing, stating the crime charged, asking for the defendant’s plea, and sometimes setting bail. My first time, the defendant, a middle-aged African-American man who was arrested for a misdemeanor, was bloodied from head wounds and was moaning in pain. The police claimed, incredibly, that the man had put his own head through the window of a police car. We all knew that police officers’ use of force was common, that they commonly tacked on an accusation of “resisting arrest” to misdemeanor charges in order to justify it, and that the legal system would believe an officer’s account over an arrestee’s claim of excessive force. My questioning of police accounts of arrests quickly led to my having an unfavorable reputation among cops I worked with. I left the job only six months after I started. George Floyd, of course, did not make it to a hospital arraignment in Minneapolis on May 25th. He was killed by a white officer, Derek Chauvin, in the course of an arrest on suspicion of using a counterfeit twenty-dollar bill to buy cigarettes. Chauvin kneeled on Floyd’s neck for nearly nine minutes while Floyd pleaded, “Please, I can’t breathe.” Floyd’s death, in the light of day, as three other officers looked on or helped restrain him, was captured on video by a teen-age bystander.

Continue Reading at New Yorker »

Prof. Randall Kennedy About Accurately Quoting Racial Epithets

On CNN, Michael Smerconish talks to Professor Randall Kennedy about using the n-word in academic settings.

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Law Professor On Misdemeanor Offenses And Racism In The Criminal System

The police killings of George Floyd, Eric Garner and other black men and women began with allegations of a minor offense, such as passing a counterfeit $20 bill or selling individual, untaxed cigarettes. Misdemeanors — these types of low-level criminal offenses — account for about 80% of all arrests and 80% of state criminal dockets, says Alexandra Natapoff, a law professor at the University of California at Irvine and author of Punishment Without Crime. “It’s surprising to many people to realize that misdemeanors — these low-level, often chump-change offenses that many of us commit routinely without even noticing it — make up the vast majority of what our criminal system does,” Natapoff tells NPR’s Ari Shapiro on All Things Considered. “The offenses can include everything from traffic offenses to spitting, loitering, trespassing, all the way up to more serious offenses like DUI or many domestic violence offenses,” she says. “It’s … the vast majority of ways that individuals interact with police.” Natapoff says the misdemeanor system has “not gotten its fair share of blame” for the racism of the U.S. criminal justice system and how it disproportionately affects people of color. “This is the beginning of how we sweep people of color, and African Americans in particular, into our criminal system,” she says, through over-policing black neighborhoods, racial profiling and practices like stop-and-frisk.

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The Problem of Police Powers for People Living While Black

An article by Annette Gordon-Reed: A few years back, I was on my way to an appearance at the Brattleboro Literary Festival, in Vermont. My coauthor, Peter S. Onuf, and I had decided to rent a car and drive up from New York, taking the scenic route. The weather was great, and it would be an adventure. Night fell as we drove through Massachusetts, and we were in the middle of a conversation when I noticed lights flashing behind us. Peter saw them too, and immediately pulled over to the shoulder of the road. Perhaps because we were on the highway, and it was dark, the officer came to the passenger side of the car, where I was sitting. He motioned for me to open my window. I complied. He asked if we knew why we had been pulled over, and we were at a total loss. He said Peter had veered over the center line on the road. The problem with that explanation was that there was no line on that stretch of road. There had been some construction, and workers were in the process of putting a new lines down, as we could see looking farther ahead. He asked our names, which we gave. He asked Peter for his license. And then he asked me for my ID. I was sitting there calmly, wearing my seat belt; I doubt seriously that the officer would have asked Peter’s wife, who is white, for her identification under these circumstances. The thing that was unusual about the two of us—and which, I believe, made the officer “suspicious” of us—was that Peter is white and I am black. We were an incongruous couple and had no reason to be together unless we were up to no good. Aside from writing works of history, I teach Criminal Procedure at Harvard Law School. But the intricacies of the law at that moment in the car were the furthest thing from my mind. What mattered was my deep awareness of the raw power of the person who had a gun and who had pulled us over for crossing a line that did not exist.

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Young people have the megaphone. Here’s what they want everyone else to hear

A headline-making protest that drew enormous crowds to the streets of Boston started with a tweet — and three college students. After three days of watching protests sweep across the country in the wake of the killing of George Floyd, a 46-year-old Black man, in Minneapolis, Amel Viaud of Mattapan decided it was time for her community to stand up…Young people have the megaphone, and they say they won’t give it up until the country has fully reckoned with the police violence and systemic racism threatening their communities and lives…Young people organizing for racial justice follow in a long tradition. “There have been successive waves of youth activism outflanking the traditional African-American and civil rights leadership” dating back to the 1930s, said Kenneth Mack, a Harvard Law School professor who studies the history of race in the law. He pointed to the example of Representative John Lewis, who as a young man chaired the Student Nonviolent Coordinating Committee, a civil rights group that both collaborated with and challenged the tactics of established figures like Martin Luther King Jr. “In that sense, what’s happening right now is very continuous with the past,” Mack said. To Mack, it is no surprise that today’s young people, and Black youth in particular, are leading a new wave of civil rights protests. “I think it’s become hard for young people to avoid images of the movement today,” he said. Teens and young adults are steeped in videos of Black people dying at the hands of police officers, political hashtags and slogans, and images of protests — all of which circulate rapidly online. “We have an entire generation of young people now who have grown up debating these issues,” Mack said.

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After the protest…what next?

An article by David Harris: First, and essentially, we must reckon with what our history has wrought. As difficult as such a reckoning will be to define, indicators will reveal the extent to which we have succeeded. In order to facilitate the process, we must acknowledge a foundational point: “We the People” has never included all of us. That cannot be subject to debate. Once we acknowledge this defining exclusion, we can trace the myriad ways in which having denied large groups of people, notably African Americans and Native Americans, the most basic rights of membership and participation — the qualities of citizenship — has diminished life chances for individuals and communities. Understanding the real, ongoing harm from policies and practices that have differentially distributed access and opportunity, state violence, and deprivation will open our eyes to avenues for repair and restoration. We must rethink our notions of justice, as well. Our current coupling of criminality and justice locks us into a fixation on punishment in lieu of a system of justice. I understand justice as being made whole, which promotes practices that center on health and well-being of all residents, and whole communities, as the hallmarks of safety. Another more tangible indicator of our progress on the pathway to reckoning will be whether we not only hear and empathize with what people who have suffered for decades are saying, but act in truly responsive ways. As people are taking to the streets at great risk to themselves to decry the institutionalized racial violence perpetuated by policing, promoting legislation that bans chokeholds is tone deaf.

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Social media is one way to get involved in the anti-racist movement, but it can also cause anxiety. And the rules of engagement seem to differ for black and nonblack people.

Social media can be a scary, dangerous place under regular circumstances, but in a time of civil unrest due to the deaths of unarmed black men and women at the hands of police officers, social platforms become uncharted territory — particularly for many nonblack people hoping to show that they are allies. Under these circumstances, posting, or even knowing what to post, can sometimes create anxiety. Like many things, the rules of engagement on social media are different for black and nonblack people, especially now. For black people, anxiety can come from having posts critiqued by other black people because they don’t seem “angry enough,” “sad enough” or not enough of some other emotion. Kishonna Gray, an assistant professor in communications and gender and women’s studies at the University of Illinois at Chicago, doesn’t think there are any unspoken social media rules for different races, but rather there are entirely different spheres. That’s why Black Twitter, and other similar spaces, exist, she said…For nonblack people, especially white folks, the anxiety of posting can come from being unsure or fearful about what to say or do, but also from just being in this movement for the first time.
“This has been a marathon that has gone on for centuries, so they’re getting aboard a fast-moving train and trying to make sense of it,” said Gray, who is also a faculty associate at the Berkman-Klein Center for Internet and Society at Harvard University “So they don’t know. It’s not laid out easily for them; there’s no GPS on the path to liberation and freedom. And so it’s exhausting … especially for folks who’ve never had to think about it.” …But that shouldn’t stop them from trying. If a nonblack ally doesn’t have anything of substance to contribute, don’t take up more space, said Gray, but amplify and highlight the voices — particularly the black voices — that have already said what you’re feeling, thinking or trying to express.

Continue Reading at Chicago Tribune »

Some of the Charges Stemming From George Floyd’s Death Should Trouble Criminal Justice Reformers

Activists who were outraged by George Floyd’s death welcomed the criminal charges against Derek Chauvin and three other former Minneapolis police officers who were involved in that horrifying incident. But some of those charges raise issues that would trouble many of the same criminal justice reformers if the context were different. The second-degree manslaughter charge against Chauvin, the officer who kneeled on Floyd’s neck for nearly nine minutes, seems to easily fits the facts of the case. It alleges that Chauvin caused Floyd’s death “by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another.” That offense carries a maximum penalty of 10 years in prison…Chauvin also faces a third-degree murder charge, which alleges that he caused Floyd’s death by “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” That charge, Harvard law professor Laurence Tribe and Minnesota criminal defense attorney Albert Turner Goins have argued, is not appropriate in this case, because Minnesota courts have restricted it to “reckless or wanton acts” committed “without special regard to their effect on any particular person.”

Continue Reading at Reason »

Protests in a Pandemic

A podcast by Noah FeldmanDr. Manisha Juthani, an infectious disease specialist and associate professor of medicine at Yale School of Medicine, provides tips for protesting safely and explains why she chose to participate.

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Police Unions Face Reckoning Over Contracts Shielding Misconduct

Democrats’ sweeping proposal this week to curb police violence against minorities doesn’t address what’s drawn criticism from Black Lives Matter activists and management-side attorneys: union contracts that shield officers who use lethal force. Activists have begun to focus on collective bargaining agreements that allow accused officers to resolve their complaints through arbitration behind closed doors; wait 48 hours after a lethal incident before being questioned by police, often with an attorney and a union representative present; and access information on evidence and witnesses that wouldn’t be available to civilians. The calls for reform follow days of global protests over the death of George Floyd, an unarmed, restrained black man, after a Minneapolis officer knelt on his neck for almost nine minutes. Other videos of police violence—including an incident in Buffalo, N.Y., in which a protester was injured after being pushed to the ground—are going viral…It’s not uncommon for union contracts to require a waiting period, typically 24 or 48 hours, between an incident and the time an officer is interviewed. This allows officers to meet with an attorney and union representatives, who are usually present during questioning, said Benjamin Sachs, the faculty codirector of the Labor and Worklife Program at Harvard Law School. “It allows officers time to develop a strategy to avoid accountability,” Sachs said.

Continue Reading at Bloomberg »

Qualified Immunity Suggests Police Are Above the Law

An article by Noah FeldmanThe Justice in Policing Act of 2020 introduced by House Democrats this week contains a provision that is likely to become the subject of lively debate: The provision effectively eliminates the legal defense known as “qualified immunity” for state and local police who get sued for violating citizens’ civil rights. The proposal is extremely important from a symbolic perspective. The Supreme Court has used the doctrine in recent years to send a message to lower courts that it wants less litigation against police. Now is the time for Congress to send the opposite message. Lawmakers should make it clear that police should not be “immune” from responsibility when they break the Constitution. The doctrine of qualified immunity muddies the principle of equal justice under law. Nor is qualified immunity contained in the text of any federal statute. It was invented by the Supreme Court in a series of cases, most importantly the 1982 decision of Harlow v. Fitzgerald. The basic idea of the doctrine is to create an exception to the important civil rights statute known as Section 1983. That law, whose origins date back to 1871, says that a state or local government official who violates a citizen’s constitutional rights “under color of law” can be sued in federal court and held liable for monetary damages. Essentially, qualified immunity says that you can only win a suit under Section 1983 if you can prove that the official’s conduct violated clearly established federal law.

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IBM Quits Facial Recognition, Joins Call for Police Reforms

IBM is getting out of the facial recognition business, saying it’s concerned about how the technology can be used for mass surveillance and racial profiling. Ongoing protests responding to the death of George Floyd have sparked a broader reckoning over racial injustice and a closer look at the use of police technology to track demonstrators and monitor American neighborhoods. IBM is one of several big tech firms that had earlier sought to improve the accuracy of their face-scanning software after research found racial and gender disparities. But its new CEO is now questioning whether it should be used by police at all…IBM’s decision to stop building and selling facial recognition software is unlikely to affect its bottom line, since the tech giant is increasingly focused on cloud computing while an array of lesser-known firms have cornered the market for government facial recognition contracts. “But the symbolic nature of this is important,” said Mutale Nkonde, a research fellow at Harvard and Stanford universities who directs the nonprofit AI For the People. Nkonde said IBM shutting down a business “under the guise of advancing anti-racist business practices” shows that it can be done and makes it “socially unacceptable for companies who tweet Black Lives Matter to do so while contracting with the police.”

Continue Reading at New York Times »

Immunity Doctrine Often Shields Police From Lawsuits

Three days after George Floyd was killed in the custody of Minneapolis police, the Supreme Court’s justices met privately to consider a raft of long-pending appeals asking them to review a legal doctrine that makes it difficult for many victims of abusive policing to sue the perpetrators. The timing was coincidence, and the court has taken no action on the petitions. But the multitude of cases—including one from Minneapolis—underscores the power of qualified immunity, a rule the Supreme Court recognized in 1967, and later strengthened, to protect officials from the threat of litigation for most law-enforcement actions…Congress in 1871 prohibited state and local officials from violating an individual’s civil rights, during its drive to protect newly free African-Americans from repression in the South…The qualified-immunity doctrine emerged nearly a century later, when in 1967 the Supreme Court said clergymen arrested in 1961 for refusing to leave a bus terminal’s whites-only waiting room in Jackson, Miss., couldn’t sue police officers for violating their rights, since Mississippi’s segregated bus terminals weren’t found unconstitutional until 1965…A turning point came in a 1982 case, Harlow v. Fitzgerald, when the court dismissed a case filed by a former Air Force official alleging that Nixon White House aides fired him for exposing “shoddy purchasing practices.” The decision, by Justice Lewis Powell, freed official defendants from having to demonstrate they acted in good faith, a requirement he said permitted too many “insubstantial claims” to move forward. “Part of Powell’s concern was that police officers might hesitate when they shouldn’t hesitate just out of fear of personal liability,” said Harvard law professor Richard Fallon, who as a law clerk helped the justice draft the Harlow opinion. But the doctrine doesn’t operate “the way Powell thought it operated” because in practice officers don’t pay judgments themselves—police departments do, Mr. Fallon said. “If the officers have immunity, de facto you get immunity for police departments,” he said.

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The Barriers to Reform

A podcast by Noah FeldmanPaul Butler, a law professor at Georgetown, a former federal prosecutor and the author of the book “Chokehold: Policing Black Men,” on policing, George Floyd, and the Black Lives Matter movement.

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Floyd killing shows police unions abuse power. We need radical reform: Former union lawyer

An article by Benjamin Sachs: Among the many outrages in the death of George Floyd is this one: Derek Chauvin, the police officer who killed Floyd, had been the subject of at least 17 misconduct complaints and yet he remained an armed member of the Minneapolis Police Department. How does that happen? Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union. Like other such police agreements, the one in Minneapolis gives cops extraordinary protection from discipline for violent conduct. It mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even to criminal suspects and one that allows officers time to develop a strategy to avoid accountability. Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time. Under the Minneapolis police contract, any disciplinary action that does not result in punishment must be removed from an officer’s record. Even in cases where an officer is fired for misconduct, the agreement requires an appeals process that frequently leads to reinstatement, especially if the investigating agency has committed procedural errors. Police collective bargaining agreements, in short, insulate cops from discipline.

Continue Reading at USA Today »

‘Deeply Unlawful’: Harvard Law School Faculty Condemn Trump’s Response to Police Brutality Protests

Members of the Harvard Law School faculty published an open letter to students and Harvard affiliates Monday criticizing President Donald J. Trump for calling for a military response to ongoing protests against police brutality. The letter received signatures from 160 faculty members, including former Law School Dean Martha L. Minow and former United States Ambassador to the United Nations Samantha J. Power. It was reopened for signatures on June 2 after requests from additional Law School teaching faculty and law librarians. The authors of the letter denounced a tweet posted by Trump on May 29 which included the phrase “when the looting starts, the shooting starts” in reference to nationwide protests following the killing of George Floyd by Minneapolis police. They argue the president’s language encourages violence by private citizens. “By legitimating lawless action by public officials, the President’s tweet invites other individuals to take similarly destructive action,” the letter reads. The White House press office did not immediately respond to a request for comment. Law School professor Christine A. Desan, who worked on drafting the letter, said Trump’s tweet signified a commitment to using violence against citizens involved in the protest. She said she finds the message problematic since Trump speaks as the Commander in Chief of the Army. “We don’t under our Constitution live in a society where even if somebody is stealing something they get shot,” she said. “To have him pledge to use excessive state violence against people indiscriminately is really unlawful — deeply unlawful.”

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Trump and Barr Violated Free Speech for a Photo Op

An article by Noah Feldman: Did President Donald Trump’s administration violate the First Amendment on June 1 when various police and other security forces tear gassed peaceful demonstrators in Lafayette Square park so the president could walk to St. John’s Church for a photo op? That is the central question in a lawsuit brought over the weekend by the Washington, D.C. chapter of Black Lives Matter and a number of individual protesters. The answer is almost certainly yes. And the lawsuit is extremely important, not because the plaintiffs will necessarily prevail, but because it is the best and maybe only way to prevent such a blatant constitutional violation from happening again just steps from the White House. Like most people, I followed the events of the evening of June 1 on television. The Trump administration may eventually offer a different version than the one we saw. For now, however, it’s reasonable to assume a set of facts pretty close to those alleged in the lawsuit. Essentially, Lafayette Square, directly across from the White House, was full of peaceful protesters. They were exercising their First Amendment rights in a public park, which the courts consider to be the very model of a “traditional public forum” where free speech rights are at their peak. Just after 6 p.m., a large number of armed law enforcement and military gathered around the park. The lawsuit alleges that they included “at least” U.S. Park police, Arlington County police, U.S. Secret Service, D.C. National Guard, and military police from the 82nd Airborne Division of the U.S. Army. Trump had apparently tasked Attorney General William Barr with commanding this wide range of police. There have been divergent accounts of whether Barr gave a direct order to clear the park.

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What if we eliminated the police?

An article by David HarrisI hate the PO-lice. This is not an easy thing to admit and will certainly generate a great deal of heat, but it is past time to do so. To be clear from the beginning, this hatred is not directed at individuals, whether rank and file or leadership. It is directed at the institution and practice of policing in the United States, born as it was from the practices of slave catching, which has served as an instrument of social control over black people for far too long. So, I hate the policing. I have to keep saying it. It’s more important than repeating the name of someone who has been killed or any other chant we might invoke in protest. It conveys a truth, hard to come by, but once arrived, so very cathartic. It is a complicated admission and it actually feels like a confession. I have always told my son “hate is a strong word,” and urged him to use it sparingly. Sunday night when he returned from marching and protesting on the streets of Boston and we were watching the policing of the city on television, I had to say it out loud, though in a muted voice. “I hate the police,” I whispered. My son has grown up in the era of cellphones and social media. He has been bombarded but also socialized by social media reports of police atrocities. In the aftermath of George Floyd’s murder, we have talked about policing at length and in those conversations, informed by his couple years of college, including a course on Red Summer of 1919, we talked about police abolition. I told him how happy I was to know that he had been listening to me for all the years I have been telling him police are not a natural phenomenon, that society existed and survived for millennia without them.

Continue Reading at Commonwealth Magazine »

Trump’s authoritarianism in the streets is being matched in the courts

An article by Joshua A. Geltzer, Neal K. Katyal, Jennifer Taub and Laurence H. Tribe: The Trump administration’s authoritarian behavior on the streets is being matched by its authoritarian positions in the federal courts. On Monday, as the administration used military force to push peaceful protesters out of Lafayette Square, administration lawyers filed an astonishing brief in the federal appeals court down the street, urging the court to order the trial judge to dismiss the case against Michael Flynn. The brief represents a remarkable new position by the Trump Justice Department: The doors of federal courthouses should be closed to hearing arguments other than those advanced by the department itself, and federal judges may not even inquire into whether the administration has acted improperly. When the Justice Department moved abruptly to drop the Flynn case — after he pleaded guilty (twice) and as he was awaiting sentencing — U.S. District Judge Emmet G. Sullivan took two steps. He appointed a “friend of the court” to argue the position that the Justice Department had suddenly abandoned; and he called a hearing to scrutinize the department’s about-face. The Justice Department told the appeals court that it should take the extraordinary step of intervening in the case — before Sullivan has ruled or even held a hearing — to stop him from doing so. “Simply put, the district court has no authority to reject the Executive’s conclusion,” the department said.

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‘Union’ Is Crucial Word in Mattis’s Trump Denunciation

An article by Cass SunsteinWhat pushed former Defense Secretary James Mattis over the edge, to denounce President Donald Trump, in the strongest possible terms? Only the former general knows for sure, but a clue is provided by the title of his statement: “In Union There Is Strength.” Another clue is provided by the most important words in his text: “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead he tries to divide us.” With those words, Mattis is signaling a national challenge that goes back to the founding era, that almost derailed the American project from the very start, that helped start the Civil War, and that has had to be managed with great care during every national crisis. Shortly after the American Revolution, the new nation was at grave risk of falling apart. To many people, diverse affiliations and identities made it difficult to speak of the “United States of America.” Under the Articles of Confederation, intense loyalty to states, and competition among states, seemed to outstrip loyalty to the nation. Prominent politicians fueled the divisions. The Constitution was designed to solve that problem. You can see what its framers had in mind if you look an early draft of the document.

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Presidents Once Used This Law To Uphold Civil Rights And Protect Black Americans. Now Trump Is Trying To Silence Dissent

An article by Nancy Gertner: True to form, President Donald Trump appears poised to blunder into an area fraught with constitutional, not to mention human peril. He has threatened to deploy the United States military if “a city or state refuses to take actions that are necessary to defend the life and property of their residents,” to, as he says, “stop the rioting and looting.” There is an irony here. Trump was unwilling to deploy the considerable authority he had under the Defense Production Act of 1950 to do what needed to be done in the face of the pandemic, but is willing to deploy authority he may well not have — or should not exercise — in the face of protests and civil disorder. Trump refused to invoke the full power of the Defense Production Act, which would enable the government to direct private companies to ensure the procurement of vital equipment needed to fight the coronavirus pandemic. Governors and members of Congress pleaded for its invocation. He relented only to get General Motors to step up ventilator production and 3M to manufacture N-95 masks, but no further. It would be, he said, the equivalent of “nationalizing our business,” which we should not do. “Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well,” he said. But, of course, it’s OK to be Venezuela when Trump threatens federal military force to quell domestic disputes.

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Yes, Trump Can Send In The Military: Harvard’s Feldman

Noah Feldman, Harvard Law professor and Bloomberg Opinion columnist, discusses his column: “Can Trump Send In the Military? Probably, Yes.” Hosted by Lisa Abramowicz and Paul Sweeney.

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Can Trump Send In the Military? Probably, Yes

An article by Noah FeldmanAt a hastily arranged Rose Garden press conference on Monday, President Donald Trump announced his intention to invoke the Insurrection Act of 1807 to send federal troops into the states unless governors were able to “dominate” protesters using National Guard soldiers. Then, after the Secret Service fired tear gas and rubber bullets at what appeared to be peaceful protesters in Lafayette Park, Trump walked a few hundred feet across the park for a photo op in front of a boarded-up church opposite the White House. Given Trump’s track record of announcing legally problematic measures and not implementing them, it could be that his plan to invoke the Insurrection Act is no more meaningful than was his walk in the park. Nevertheless, it’s worth looking closely at the law in question. The Posse Comitatus Act of 1878 might ring a faint bell in your mind — it’s the law that says the president can’t use the military to enforce the law without authorization from Congress. The Insurrection Act is even more obscure. But it’s also more important right now. That’s because it is an act of Congress that authorizes use of the military to enforce the law in some circumstances. In other words, it functions as an exception to the Posse Comitatus Act.

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Could Trump deploy the military to cities like Boston to quell protests?

President Trump on Monday vowed to send the military into American cities if any city or state “refuses” to take the steps necessary to quell the violent protests erupting around the country. The Insurrection Act of 1807 does give the president broad authority to deploy federal military forces to a state or to federalize a state’s national guard to deal with a rebellion or other domestic unrest that is preventing the enforcement of federal law — even over the objection of the state’s governor, legal scholars say. But governors and Democratic attorneys general around the country were quick to declare that the law does not apply to the current unrest, which has involved peaceful protests as well as looting and violence. They say that local law enforcement has not been overwhelmed…Some scholars agree with Healey that the Insurrection Act cannot be used in the current situation — but they don’t necessarily think that will stop Trump from using the law. Unlike in the school desegregation battles of the 1950s and 1960s, the states do not appear to be flouting federal law or federal court orders. “I would say that’s an unconstitutional use of the military because there is no real rebellion against the US,” said Laurence Tribe, a constitutional law professor at Harvard Law School. Treating ordinary American citizens engaged in civil protest as insurrectionists “turns the law upside down,” he said.

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65 Harvard Law Professors Condemn Trump’s Response To Protests Over George Floyd Killing

Sixty-five Harvard law professors have condemned President Trump’s actions in response to protests over the killing of George Floyd. In a letter, the professors say the president’s tweet saying “when the looting starts, the shooting starts,” commits federal authority in a way that violates the law. Harvard law professor Christine Desan signed the letter and also denounced the president’s threat to deploy the military to quell protests. “One message I hope the letter sends is to remind us all that the Army — and for that matter the police forces — are not his army,” Desan said. “It’s not Trump’s army that he’s deploying. It’s our army, our military, and we have the right and responsibility to make sure that that military is used responsibly.” The letter was addressed to Harvard law students.

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Police facial recognition tech could misidentify people at protests, experts say

Even if you’re sitting at home on your couch, there’s a chance you could be arrested for protesting. How? If the police force in your area is using any kind of facial recognition software to identify protesters, it’s possible you could be misidentified as one. Most facial recognition was trained to identify white male faces, experts told Digital Trends, which means the probability of misidentification for anyone who is not white and not a man is much higher…A facial recognition system prone to false positives could cause innocent people to be arrested, according to Mutale Nkonde, a fellow at the Berkman Klein Center of Internet & Society at Harvard University and a non-resident fellow at the Digital Civil Society Lab at the Stanford Center on Philanthropy and Civil Society. “Police will use the mug shots of people who have been committed for other crimes to train facial recognition, arguing that if you’ve committed one crime, then you’ve committed another,” Nkonde said. “First off, that’s unconstitutional. Second, that means that if you’ve been arrested for looting in the past, but haven’t looted recently, the police could now come arrest you for looting in May or June because your picture is in the system and it may have turned up a false positive.”

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People Can’t Stop Watching Videos of Police and Protesters. That’s the Idea.

An officer shoving a protester to the ground. Two New York Police Department cars ramming demonstrators. Police using batons, bicycles and car doors as weapons. These are becoming defining images of the protests against police brutality of black people that have swept the nation, sparked by the killing of George Floyd in Minneapolis. Countless videos of these moments have been shared on social media. Among the most-seen of them: a compilation video created on Saturday. Jordan Uhl, a political consultant and activist in Washington, D.C., wanted to make sure as many people saw these videos as possible. Encouraged by a friend, he edited together 14 clips, including one from a reporter at The New York Times of an officer accelerating and opening a car door that hit protesters…Mutale Nkonde, a fellow at the Berkman Klein Center for Internet and Society at Harvard University, said that Mr. Uhl’s video “really reinforces that black protests, white protests and all social justice protests generally are not violent in nature. It moves us away from the ‘there are bad people on both sides’ or ‘there are good people on both sides’ argument and really highlights law enforcement’s aggressive attitude toward black people displaying their rights.”

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Bobby Kennedy’s Big Omission: White Racism

An article by Cass SunsteinWith widespread grief and protests over the killing of George Floyd, the U.S. is badly in need of national leadership. Ideally, the president, or someone with a great deal of stature and trust, would provide it. In an analogous time, Robert F. Kennedy did exactly that, with what is generally considered one of the most moving speeches in U.S. history. Like the Gettysburg Address, which it resembles, it is elegiac — and short. And as with Lincoln’s great speech, every word rings true. But if you listen to it today, you would be right to feel some discomfort. For all its gentleness and sensitivity, it is missing something important: an acknowledgment of the past and present effects of white racism. The day was April 4, 1968. Kennedy was in Indianapolis, running for the Democratic nomination for president. Martin Luther King Jr. had just been killed. RFK announced King’s assassination to an audience that was largely African-American. People were worried about riots. Kennedy began simply: “Martin Luther King dedicated his life to love and to justice for his fellow human beings, and he died because of that effort.” He addressed the question of the proper response: “For those of you who are black — considering the evidence there evidently is that there were white people who were responsible — you can be filled with bitterness, with hatred, and a desire for revenge.”

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An Open Letter to Our Students and the Community

A letter from group of Harvard Law School faculty: We write to condemn a series of acts by President Trump and other public servants that endorse violence and are inconsistent with a democratic legal order. Their life-and-death impact is divisive and exacerbates political unrest and extreme economic distress, particularly in communities of color.  The injustices animating current protests go far beyond the President’s actions.  We focus on those actions here because they expose structural racism and our collective responsibility for change. On May 29, the President responded to protests in Minneapolis with a tweet that pledged federal control to the effect that “when the looting starts, the shooting starts.” The statement promised indiscriminate violence on its own terms. In addition, the phrase, famously uttered by a southern police chief who embraced police brutality during the Civil Rights Era, aligned U.S. military action with violent reprisals against protesters. Finally, as in the Civil Rights Era, the statement pledged violent state action against those who protest race-based injustices.

Continue Reading at The Harvard Law Record »

Trump’s Antifa Threat Is a Threat to Free Speech

An article by Noah FeldmanOn Sunday, President Donald Trump tweeted that the executive branch will designate Antifa as a “terrorist organization,” apparently in an attempt to pin blame for the weekend’s violent protests on the loose collection of far-left activists. The president’s announcement was characteristically unclear. Federal law says that if the Secretary of State designates a group as a foreign terrorist organization, then materially supporting that organization becomes a very serious federal crime. There is no comparable domestic terrorism designation under existing law. Setting aside the important factual question of whether groups of anti-fascist protestors are actually to blame for the violence, let’s look at whether Trump can “designate” them as terrorists. (The fact that Antifa may not be very organized wouldn’t itself necessarily stop designation. Nothing in the law specifies how organized a group must be to count as an organization.) If Trump’s “designation” is purely symbolic, the Constitution doesn’t come into it. Even without congressional authorization, the president can say what he likes — including inventing a designation that carries no legal consequences. However, if the Trump administration were to designate Antifa as a foreign terrorist organization, and the designation survived judicial review, then joining the group, funding it or coordinating with the organization in any way could be punished with harsh jail terms.

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A Top Obama Official on Police Brutality

A podcast by Noah FeldmanVanita Gupta, the former head of the U.S. Department of Justice’s Civil Rights Division, discusses the protests across the country, and the reforms she would make to how policing works in the U.S.

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Professor Dehlia Umunna Calls In

Professor Dehlia Umunna calls into iHeartRADIO’s Matty in the Morning to discuss race and policing in the United States.

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What the Law Says About Deploying Troops on U.S. Soil

President Donald Trump, responding to sometimes-violent protests following the death of George Floyd at the hands of police, said he would send in the U.S. military to “quickly solve” the problems of looting and rioting if the nation’s mayors and governors did not act forcefully enough. The use of the armed forces within U.S. borders is strictly governed by federal law, however, and there would be serious questions about the legality of such a move…Would the law allow Trump to act alone in the current situation? Many legal experts believe it would. Noah Feldman, a Harvard University law professor and Bloomberg Opinion columnist, says the broad language of the Insurrection Act means Trump “might have a case” that the rioting and looting “is obstructing execution of federal law to the extent that local police and the National Guard can’t successfully stop violence on the streets.”

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