October 23, 2020
The third panel of The George Washington Law Review 2020 Symposium was introduced by Roger Fairfax, Patricia Roberts Harris Research Professor of Law at The George Washington University Law School. The first panelist to present, Josephine Ross, is a Professor of Law at Howard University School of Law. Professor Ross opened by recounting the story of her student Richard, who was stopped and questioned by police while walking home in New York City and was beaten for challenging police authority. This was a stop that began as legal, but which, according to Professor Ross, “morally stunk from the very beginning.”
Professor Ross called for the abolition of Stop and Frisk as it exists today. She argued that the current doctrine of determining whether force used in a Terry stop was “reasonable” or “excessive” should be replaced with a framework paralleling sexual harassment, and that the law should require probable cause for police to conduct a Terry stop. According to Ross, the current doctrinal approach is insufficient in at least five ways: (1) frisking is sexual harassment by its very nature, with police “putting their fingers all over a body;” (2) courts do not currently have a vocabulary to confront retaliatory police harassment; (3) stops without a frisk are also harassment, and are akin to workplace sexual harassment; (4) sexual harassment law is better positioned to compensate for psychological and physiological damage caused by Terry stops; and (5) the ability of victims of sexual harassment to stay home and collect damages on the finding of a “hostile work environment” are needed for victims of police harassment.
In the question-and-answer section of the panel, Professor Fairfax asked Professor Ross if nothing short of reparations would be sufficient to cure damage to communities stemming from excessive police force. Professor Ross responded that while reparations are part of the solution, it is more urgent to stop the problems going on now. She said that if we honestly were to rebalance the test in Terry, it would throw out a number of harmful police practices, and everyone on the panel had suggested valuable mechanisms to prevent further harm in future.
The second panelist, Julian Cook, J. Alton Hosch Professor of Law at University of Georgia School of Law, began by suggesting that congressional Democrats should do more to highlight the moral righteousness of their political arguments, a rhetorical approach which conservatives use “hypocritically” but effectively. For example, he said that Democrats might make a better case for the Affordable Care Act by connecting their advocacy to Jesus Christ, a healer who in John 9:25 restored a blind man’s sight, or could frame their civil rights efforts with the example of “civil rights leader” Moses.
Professor Cook said that in gatherings like the Symposium, scholars must not forget the “Godly moral foundation” for their proposals, and should not cede the moral rightness of their positions as they press for change. In Professor Cook’s view, this is all the more important in light of the Supreme Court’s willingness to grant police “superpowers,” quoting Professor Paul Butler’s keynote address. Professor Cook noted that, out of the 4.4 million stops conducted in New York City since Terry v. Ohio was decided in 1968, no weapons were found in 98% of cases. However, he noted that Terry has only been further “watered down” in Supreme Court jurisprudence. Professor Cook concluded by urging the Symposium’s attendees to “not cease pressing our moral case.”
Professor Fairfax asked Professor Cooper if there were competing class identities among police officers akin to Professor Cooper’s model of heavier police force in communities of lower income. Cooper responded that there are competing masculinities in policing, and that more working-class cops on the beat are increasingly in conflict with administrators. Professor Fairfax followed up by asking Professor Cook about Black police officers facing pressure to assimilate into police culture and whether this contributed to the harms visited upon Black communities. Professor Cook replied that the Supreme Court’s willingness to grant wide powers to police remained a critical obstacle to changing police culture, which no one can overcome without legal change.
The third panelist was Frank Rudy Cooper, William S. Boyd Professor of Law and Director of the Program on Race, Gender, and Policing at University of Nevada, Las Vegas’ William S. Boyd School of Law. Professor Cooper opened by contrasting two neighborhoods in Las Vegas. Summerlin, in which Professor Cooper lives, is a largely White, upper-middle-class community with a median income of over $90,000 per year. Westside, where a majority of residents are Black and Hispanic, has a median income of around $52,000 per year. Westside has a significantly higher police presence than Summerlin, which in Professor Cooper’s view, exemplifies that class plays a role in police bias, along with race and gender.
Professor Cooper traced the development of the doctrinal approach to police excessive force beginning with Tennessee v. Garner in 1985. In practice, courts validate the policies of police departments with an outside view of what is truly “reasonable.” While many scholars have called attention to how Black and Hispanic people are statistically more likely to be killed by police, Professor Cooper argued attention to victims’ class is often missing from these analyses. He argued that police force is used to patrol the boundaries of the upper echelon of America’s neoliberal class structure. Professor Cooper framed that effort as a manifestation of America’s “centaur state:” the free market and deregulation for its “soft” top, and the punitive state and self-reliance prevailing on its “hard” lower half. Excessive force accentuates the wealth gap and contributes to further class disparity.
The fourth and final panelist was Justin Hansford, Professor of Law and Director of the Thurgood Marshall Civil Rights Center at Howard University. Professor Hansford discussed his advocacy before the Inter-American Commission of Human Rights (IACHR) on the need for police reform in the United States. Professor Hansford showed a video the U.S. government’s response to their arguments, claiming that even in light of police “superpowers,” the mere presence of a civil cause of action for excessive force was sufficient, and thus there was no need for systemic change. Professor Hansford argued that civil claims are not sufficient to create justice and compensate injuries from excessive force, and so he advocated for reparations before the IACHR.
Professor Hansford said that civil causes of action face a severe impediment from the doctrine of qualified immunity, which forecloses recovery to plaintiffs against police where a civil rights violation is not “clearly established.” Many courts require the exact same fact pattern in a previous case to overcome the presumption of qualified immunity. Professor Hansford said that the argument that the U.S. does not need police reform is belief by the data, as only 0.02% of city budgets go to compensating civil rights damages. For every police killing in the U.S., there is a commensurate harm that accrues to the African American community for which no repair is currently provided. Professor Hansford noted that around 40% of Black Americans were aware of a police killing in their community. Those Black Americans exposed to police killings also exhibit a number of psychological and physiological effects like stress, fear, reduced eating, diabetes and prediabetes, resulting in millions of lost mental health days. Professor Hansford posited that a reparations system is better positioned than civil actions to make people impacted by police violence whole.
Professor Fairfax asked Professor Hansford about police violence against women, particularly of color, and how to ensure this receives sufficient attention. Professor Hansford said that reparations would ensure that the focus would shift from men, who have generally been higher-profile victims of police violence, and could provide for an intersectional memorial to all those who have lost their lives. He argued that this would be a more sophisticated and robust approach to justice than simply disciplining officers for misconduct.
This panel review was authored by Josh Keyser.