Chicago’s Criminalization of the Homeless

By: Anna Dellit

Edited By: Patrick Ales and Renan Dennig        

         Homelessness is often treated as a social dilemma, placing the responsibility on non-profits, donations, shelters, and volunteers. However, there is a legal aspect that must be considered when looking at how a city responds to its homeless population. When examining the criminalization of the homeless and the ramifications of the COVID-19 pandemic within Chicago, it is important to note how legislation and court cases have shaped these issues. One form of criminalizing the homeless occurs when actions such as camping, storing items, or sleeping in public areas are made illegal and ticketed. By fining actions that are often caused by a lack of resources, financial or otherwise,  the legal system criminalizes homelessness and in effect creates an unending cycle of poverty and disparity. Additionally, this cycle was further aggravated by the pandemic: Lawyers’ Committee for Better Housing estimated 21,000 Chicago households and almost 542,000 renters could be at risk of eviction. Homelessness in Chicago during the pandemic affects families of color at a higher rate. A study found that while 69% if Black and 63% of Hispanic households reported financial problems, only 33% of white households report similar concerns in comparison.[1] To address these concerns, the City of Chicago had to examine their former anti-homeless ban on panhandling, eviction bans, and how the criminalization of homelessness affects future housing opportunities. The courts and government intervention play a major role in rectifying the matter.

         In the past year, a federal district judge in Chicago found Illinois’s aggressive panhandling laws to be unconstitutional. Panhandling is the act of stopping people on the street or in motorized vehicles asking for money or aid. Prior to these laws being found unconstitutional, those who engaged in panhandling could be fined or ticketed. Advocacy groups for Chicago’s homeless population found that “Violations of Chicago’s ordinance carry a $50 fine for the first or second offense within a year. The fine doubles for a third or subsequent offense within a 12-month period.”[2] In effect, this criminalized and further isolated already marginalized groups. Banning panhandling was found unconstitutional as it violates their freedom of speech protected by the First Amendment. Two men experiencing homelessness, Michael Dumiak and Christopher Simmons “sued after they were repeatedly ticketed and fined for asking passing motorists for help at a suburban Chicago intersection, while charities and religious groups collected donations at the same location without consequence.”[3] The specific targeting of those affected by or experiencing homelessness contributes to the anti-homeless attitude in the city. In reality, Dumiak never intended to break the law, and neither do many others who panhandle on streets and medians: “Some of us are just out here because we need help, especially during this hard time with COVID-19. I can’t find a job right now.”[4]  Chicago’s decision to decriminalize panhandling was not isolated or independent, but rather followed the 2015 Supreme Court ruling in the case of Reed v. Town of Gilbert.[5] While the intent of the case was to end the ban of outdoor signs without a permit in Gilbert, Arizona, the case “rearticulated the standard for when regulation of speech is content based. This determination has already had a large impact on cases involving panhandling regulations and is likely to result in the invalidation of the majority of this nation’s panhandling laws.”[6]

         While the criminalization of panhandling has been rectified, street sweeps and the displacement of people affected by homelessness have persisted. In 2020, due to the COVID-19 pandemic, Chicago Coalition for the Homeless, the National Law Center on Homelessness & Poverty, Legal Council for Health Justice, and other partnering organizations released a letter to the City of Chicago asking to put a moratorium on camp sweeps as recommended by the CDC: “homeless encampments should not be evicted during the COVID-19 pandemic unless the city can offer individual housing units to people experiencing homelessness.”[7] Street sweeps disrupt those living in camp communities by constantly relocating individuals to unfamiliar or unsafe areas. Chicago Coalition for the Homeless found in their investigation that “In the past few months, we have witnessed City crews threaten to ticket people for sleeping on the sidewalk in Uptown, force elderly and disabled people to move their property in the middle of the winter for no apparent reason, bulldoze a tent city while seizing tents that looked almost new and recently occupied, and attempt to seize the tent of a homeless man who was present and asserting that the tent belonged to him.”[8] Chicago advocacy organizations for tent communities, like Tent City Organizers, have filed many lawsuits against the City of Chicago regarding the unconstitutionality of street sweeps. They claim that “the city was violating the homeless people’s First Amendment rights by not allowing them to assemble in their tents and use their tents as symbols of protest of the city’s housing policies; their Fourth Amendment rights by seizing and discarding their property; their Fifth Amendment rights because the homeless people didn’t receive a hearing before having their property confiscated; and their Eighth Amendment rights by effectively criminalizing homelessness.”[9] Unfortunately, the suit was dismissed by Circuit Court Judge Sidney Schenkier on the basis that the camps did not constitute “expression” as stated in the First Amendment.  Additionally, because plaintiff Andy Thayers, a representative of Uptown Tent City Organizers, is not himself homeless, the claims to the other amendments are invalid.[10] For now the displacement and disruption of those affected by homelessness continues to be legal in Chicago, but organizations continue to fight the legality of the practices.

         Another major effect of the COVID-19 pandemic is eviction bans. In June 2020, the COVID-19 Eviction Protection Ordinance was approved and put in place by Chicago’s City Council. This ordinance greatly protected those who were unable to pay their rent due to being laid off or losing primary sources of income due to the pandemic, but there was an an expiration date of October 3, 2021.[11] Even with no end in sight to the pandemic, it does not appear that the eviction moratorium will be reinstated. This follows the August Supreme Court opinion in Alabama Association of Realtors v. Department of Health and Human Services [12], where the “majority of justices on the Court agreed that ordering a nationwide moratorium on evictions was not within the authority of the Centers for Disease Control.”[13] While many families scrambled in preparation for the end of the eviction ban, relief is offered in the form of rental assistance. Unfortunately, many report the application is too extensive and confusing and are unable to access the fund.[14] The end of the ban on evictions is a terrifying wake-up call for many Americans; “According to a survey by the U.S. Census Bureau, an estimated 60,000+ Illinoisans say they are likely to face eviction in the next two months.”[15] The pandemic has further exacerbated the homeless situation in Chicago. With the influx of people transitioning onto the streets, Chicago’s local government must be more lenient and compassionate when dealing with the situation. 

         One step towards equality and inclusivity towards Chicago’s homeless population was the passing of the Public Housing Access Bill in January through the Illinois General Assembly. With this piece of legislation “Illinois became the first state in the nation to remove long-standing barriers that have prevented many people with criminal convictions from living in public housing.”[16] This is important because according to Taylor de Laveaga of The National Law Center on Homelessness & Poverty, "having a criminal record makes you ineligible for many housing programs [...] Even a history of police interaction, which is common for people experiencing homelessness, can support a housing provider's decision to deny admission."[17] The bill sets a limit of 6 months for how far back public housing authorities can look back into a future tenant's criminal record and limits the power public housing authorities have to deny housing solely based on criminal history. In the past, “experiencing homelessness is closely connected to a decline in physical and mental health. For people with criminal records, the risk of homelessness is staggering, and it only increases their likelihood of further interaction with the criminal legal system. More than 25 percent of people experiencing homelessness report being arrested for an activity that was directly related to their homelessness.”[18] This creates a vicious cycle and directly ties criminalization and homelessness in an inequitable relationship.

         While there is a long way to go in order for members of Chicago’s homeless population to be treated with the dignity and respect offered to all Americans, law advocacy groups paired with specialized organization groups are making changes in the courts towards a more inclusive city. The COVID-19 pandemic has exposed hardships and infrastructural issues within housing and in Chicago’s methods of dealing with those affected by homelessness. The hope is that these cracks in the system and the current techniques of moving the homeless population will be remedied and addressed.

Notes:

1. Samuel Carlson, David Mendieta, Julie Dworkin, Estimate of Homeless People in Chicago. (Chicago Homeless.org, 2021)

2. Esa Olumhense, ACLU, Homelessness Advocates Call on Illinois Cities to Repeal Laws Prohibiting Panhandling, Citing First Amendment (Chicago Tribune, 2019) 

3. Federal Court Finds Illinois Anti-Panhandling Law Unconstitutional (ACLU of Illinois, 2021) 

4. Federal Court Finds Illinois Anti-Panhandling Law Unconstitutional

5. Reed et al. v. Town of Gilbert, Arizona, et al. (Supreme Court, 2015). 

6. Panhandling Regulation after Reed v. Town of Gilbert, (Columbia Law Review, 2016)

7. Diane O’Connell, Street Sweeps (ACLU. Chicago Coalition for the Homeless, 2020) 

8. O’Connell, Street Sweeps

9. Maya Dukmasova, Fight for Right to Camp on City Streets Will Continue Despite Legal Setback, Homeless Advocates Say (Chicago Reader, 2021) 

10. Dukmasova, Fight for Right to Camp on City Streets Will Continue Despite Legal Setback, Homeless Advocates Say

11. Know Your Rights: Covid 19 Eviction Protection Ordinance (City of Chicago :: Know Your Rights: COVID 19 Eviction Protection Ordinance, 2021) 

12. Alabama Association of Realtors v. Department of Health and Human Services (Supreme Court August 26, 2021)

13. Illinois Eviction Moratorium Extends through October 2021 for Renters (Domu, 2021) 

14. Lisa Parker and Tom Jones, With Eviction Ban Ending Soon, Illinoisans Rely on Rental Assistance to Fend off Homelessness (NBC Chicago, 2021) 

15. Mola, Landlord Faces Homelessness as Tenants Fall behind on Rent during Eviction Ban (CBS News, 2021) 

16. Spencer Maki, TV6 Investigates: Thousands Could Face Eviction as Illinois Moratorium Ends (kwqc.com, 2021) 

17. John Bae and Margaret diZerega, Illinois Bill Makes History, Highlights... (Vera Institute of Justice, 2017) 

18. Criminalization Perpetuates the Cycle of Homelessness (The Night Ministry, 2019)

Bibliography:

Alabama Association of Realtors v. Department of Health and Human Services (Supreme Court August 26, 2021)

Bae, John, and Margaret diZerega. “Illinois Bill Makes History, Highlights...” Vera Institute of Justice, September 29, 2017. 

Carlson, S., Mendieta, D. and Dworkin, J., 2021. Estimate of Homeless People in Chicago. [online] Chicago Homeless.org. [Accessed 12 December 2021].

Columbia Law Review. “Panhandling Regulation after Reed v. Town of Gilbert.” Columbia Law Review, August 24, 2016. 

“Criminalization Perpetuates the Cycle of Homelessness.” The Night Ministry, September 20, 2019. 

Dukmasova, Maya. “Fight for Right to Camp on City Streets Will Continue Despite Legal Setback, Homeless Advocates Say.” Chicago Reader, August 18, 2021. 

“Federal Court Finds Illinois Anti-Panhandling Law Unconstitutional.” ACLU of Illinois, January 19, 2021. 

“Know Your Rights: Covid 19 Eviction Protection Ordinance.” City of Chicago :: Know Your Rights: COVID 19 Eviction Protection Ordinance, September 14, 2021. 

“Illinois Eviction Moratorium Extends through October 2021 for Renters.” Domu, September 21, 2021. 

O’Connell, Diane. “Street Sweeps.” ACLU. Chicago Coalition for the Homeless, April 3, 2020. 

Reed et al. v. Town of Gilbert, Arizona, et al. (Supreme Court June 18, 2015). 

Lisa Parker, Tom Jones. “With Eviction Ban Ending Soon, Illinoisans Rely on Rental Assistance to Fend off Homelessness.” NBC Chicago. NBC Chicago, September 14, 2021. 

Mola, Mola. “Landlord Faces Homelessness as Tenants Fall behind on Rent during Eviction Ban.” CBS News. CBS Interactive, September 9, 2021. 

Maki, Spencer. “TV6 Investigates: Thousands Could Face Eviction as Illinois Moratorium Ends.” https://www.kwqc.com, October 4, 2021. 

Olumhense, Ese. “ACLU, Homelessness Advocates Call on Illinois Cities to Repeal Laws Prohibiting Panhandling, Citing First Amendment.” chicagotribune.com. Chicago Tribune, May 31, 2019. 

Title 42: A Public Health or Immigration Measure?

By: Allie Tong

Edited By: Joni Rosenberg and Tess Ballis

         Enacted in 1944, Title 42 is a public health measure that gives the Centers for Disease Control and Prevention (CDC) the jurisdiction to determine whether a communicable disease in a foreign country poses a danger of spreading to the United States. If the CDC determines that a disease is a threat and receives presidential approval, it can temporarily prohibit foreign people and property that pose risks from entering the U.S.[1]

         In March 2020, former president Donald Trump enacted Title 42 in response to the COVID-19 pandemic. However, his administration approached with a novel interpretation; under Title 42, border patrols could rapidly expel migrants at the U.S. border for “public health reasons”.[2] Similarly, the Biden administration has perpetuated the same narrative that Title 42 is a public health measure.

         Despite these claims from the Trump and Biden administrations, CDC officials have openly stated that Title 42 does little in preventing the spread of COVID-19, condemning it as “scientifically baseless and politically motivated” in a message to the Biden administration.[3] While over 1.2 million expulsions have been carried out under this law since the start of the pandemic, nearly 11 million people cross the southern border every month. Despite the constant influx of immigrants, there has been no evidence connecting the spread of COVID-19 to the migrants that Title 42 targets, indicating that this policy does little to protect Americans from the virus.[4] Also, the U.S.’s international borders largely remain open to Western travelers, implying that there is no public-health motivated need to turn away refugees at the southern border and expel them to their home countries.

         Additionally, there is an argument that Title 42 has the opposite effect of the purpose the Biden administration claims it serves. By rounding up hundreds of thousands of immigrants, failing to offer COVID-19 tests, and holding these immigrants for days and often even weeks, the expulsion policy is actually increasing the transmission of the virus. Moreover, Mexican border cities are already struggling to prevent the spread of COVID-19, and with the U.S. sending so many immigrants back across the border at such a fast rate, shelters in these cities are quickly overcrowding. Maintaining social distance and controlling the spread of the virus are impossible tasks. 

         However, one interpretation is that the spread of COVID-19 in this situation is contained in the migrant community, meaning that Title 42 does technically protect the American population from COVID-19. This then becomes a question of whether Title 42’s public health protections include immigrants. The CDC’s and the United Nations’s answers to this question is that the purposes of public health are to prevent disease, to prolong life, and to promote health regardless of national borders, hence drawing a conclusion that Title 42 threatens, rather than protects, the public health.[5]

         Under the conclusion that Title 42 is not a public health policy, it should instead be treated as an immigration measure. Asylum is a protection granted to foreign nationals already in the U.S. or at the border who are unable to return to their home country due to past persecution or a well-founded fear of persecution in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion”.[6] Under the UN 1967 Protocol, the U.S. has legal obligations to provide protection to those who qualify as refugees. However, Title 42 violates this long-standing guaranteed right to seek asylum, therefore making it illegitimate in the context of immigration law. This same conclusion was reached by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, stating that expelling asylum-seekers denies them the "opportunity to seek humanitarian benefits".[7]

         Title 42 is therefore an immigration measure disguised as a public health effort. The policy’s main intention is to limit immigration exclusively coming from the U.S.’s southern border. Title 42 follows America’s longstanding anti-immigration sentiments towards Latinx communities that are rooted in racist and xenophobic fears, rather than any legal or rational basis.

Notes:

1. Andrea Castillo and Karen Garcia, “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight,” Los Angeles Times (Los Angeles Times, October 25, 2021), https://www.latimes.com/politics/story/2021-10-25/what-is-title-42-how-does-it-impact-us-border-immigration. 

2. Andrea Castillo and Karen Garcia, “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight”.

3. “Press Release - Epidemiologists and Public Health Experts Implore,” Press Release - Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and Restart Asylum, September 30, 2021, https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42.

4. “A Guide to Title 42 Expulsions at the Border,” American Immigration Council, October 15, 2021, https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border.

5. “Press Release - Epidemiologists and Public Health Experts Implore”.

6. “Asylum in the United States,” American Immigration Council, February 26, 2021, https://www.americanimmigrationcouncil.org/research/asylum-united-states.

7. Camilo Montoya-Galvez, “Judge Rules U.S. Can't Expel Migrant Families Using Public Health Law,” CBS News (CBS Interactive, September 16, 2021), https://www.cbsnews.com/news/immigration-title-42-judge-expel-migrant-families-public-health-law/.

Bibliography:

Aguilera, Jasmine. “What Health Experts Say about Biden's Title 42 and Covid-19.” Time. Time, October 12, 2021. https://time.com/6105055/biden-title-42-covid-19/. 

“Asylum in the United States.” American Immigration Council, February 26, 2021. https://www.americanimmigrationcouncil.org/research/asylum-united-states. 

Castillo, Andrea, and Karen Garcia. “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight.” Los Angeles Times. Los Angeles Times, October 25, 2021. https://www.latimes.com/politics/story/2021-10-25/what-is-title-42-how-does-it-impact-us-border-immigration. 

“A Guide to Title 42 Expulsions at the Border.” American Immigration Council, October 15, 2021. https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border. 

Montoya-Galvez, Camilo. “Judge Rules U.S. Can't Expel Migrant Families Using Public Health Law.” CBS News. CBS Interactive, September 16, 2021. https://www.cbsnews.com/news/immigration-title-42-judge-expel-migrant-families-public-health-law/. 

“Press Release - Epidemiologists and Public Health Experts Implore.” Press Release - Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and Restart Asylum, September 30, 2021. https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42.

The Evolution and Overuse of Qualified Immunity in Police Brutality Cases

By: Emily Yang

Edited By: Tess Ballis and Hannah Cheves

1. Introduction and Background
As America has reckoned with the ubiquity of police brutality, exemplified through nationwide protests and calls for budget and policy changes, legal loopholes remain that diminish police accountability. Qualified immunity is a legal principle that minimizes the financial and legal obligations authorities face when violating constitutional law. With a code first introduced by 42 U.S.C. § 1983 (1871), Congress aimed to make individuals culpable of depriving others of their constitutional rights subject to appropriate legal action —which has since been modified to exclude, to an extent, the actions taken by government officials.[1] This exception has paved the way for the modern interpretation of qualified immunity, which effectively decreases the accountability of government officials, and specifically law enforcement officers. 

Today, judges consider two factors when determining whether to pursue legal action against government officials: 1) whether the official violated a constitutional right and 2) whether this right or law was clearly established to the point that an official would be reasonably aware. These components are objectively vague, especially given that appellate courts largely depend on precedent when reaching their verdicts. Consequently, officials are enabled to blatantly disregard constitutional rights with few to no consequences. Furthermore, as police officers reap the benefits of qualified immunity, this principle can hinder the attainment of legal justice in the case of unnecessary use of force. Despite what appear to be clear violations of constitutional rights, today’s partisan gridlock in Congress and dependence on precedence in American jurisprudence make the path to abolishing qualified immunity in police brutality cases complex.

2. Supreme Court Cases

Qualified immunity has evolved beyond the 1871 code, corresponding with a community rise in police involvement in the 1970’s.[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) reexamined the parameters of qualified immunity, defining the extent to which the principle could protect government officials.[3] In a now-infamous whistleblower case, Arthur Fitzgerald, a deputy in the Office of the Secretary of the Air Force, testified before the Joint Economic Committee in Congress to contend $2 billion in cost overruns and was consequently blacklisted from future government positions and fired by President Nixon. Despite this evidently egregious abuse of power, the Supreme Court ruled that certain government officials “require complete protection from suits for damages,” asserting that executive officials in particular should be offered immunity under the assumption that they will exercise discretion under “good faith”.[4] Of course, there is irony in this decision, considering Nixon’s impeachment in 1973. Additionally, this vague expectation that executive officials will operate with integrity has been further extended to other officials, including police officers. 

In Saucier v. Katz, 533 U.S. 194 (2001), Elliot Katz’s allegation that Donald Saucier, a military police officer, had violated his Fourth Amendment rights when using excessive force to arrest Katz at a protest outside of Vice President Al Gore’s speech set a foundation for today’s police officers to utilize the qualified immunity defense in situations in which they are accused of violating individuals’ constitutional rights.[5] The Supreme Court’s ruling cited a desire to avoid the “cost and expense of trial,” thereby setting forth the precedent to require that 1) an official’s misconduct was unconstitutional and 2) the law the official broke was clearly established.[6] In avoiding the “cost of trial,” cases involving police officers very rarely reach court — let alone a jury — circumventing the United States’ rule of law.[7] Moreover, Saucier v. Katz determined that one must consider the use of qualified immunity in light of a case’s specific circumstances; as a result, it is extremely difficult to argue whether a law has been clearly established unless there exists an exceptionally similar case that has been ruled in favor of the plaintiff.[8] 

3. Justification and Critique

In nearly all cases that call for qualified immunity, plaintiffs cite violations of the Fourth Amendment of the U.S. Constitution. With recent police brutality cases, plaintiffs have argued that police officers encroached on their right to safety from “unreasonable searches and seizures,” as well as their right to be secure in their “persons, houses, papers, and effects”.[9] 

As with all American jurisprudence, there is a justification for qualified immunity: to reduce court congestion and encourage decisiveness among government officials. Proponents of qualified immunity today argue that it enables law enforcement officers to make “judgement calls in rapidly evolving situations,” arguing that the doctrine protects all but the “plainly incompetent or those who knowingly ignore the law”.[10] 

However, these justifications do not outweigh the drawbacks, as demonstrated by gross misuses of power by executives and numerous examples of police brutality that have transpired without consequence. As earlier stated, modern cases involving police brutality require nearly identical precedent to argue that officers were depriving others of constitutional rights that are clearly established. Supreme Court Justice Sonia Sotomayor argues that qualified immunity provides an “absolute shield for law enforcement officers” and creates a “one-sided” federal court system.[11] Qualified immunity contradicts the rule of law, placing certain authorities above the Constitution. And, of course, this protection lends itself to unaddressed violence predominantly perpetrated against people of color.[12] 

4. Police Brutality and Modern Legal Loopholes

Issues with excessive use of force involving law enforcement officials often evoke judicial and social questioning of whether qualified immunity is applicable. Some past Supreme Court rulings have limited the situations in which police officers can exert lethal force, a main point of contention in the discussions on police brutality. Tennessee v. Garner, 471 U.S. 1 (1985) dictates that police officers may only exert deadly force if they believe the suspect poses a “significant threat or serious physical injury to the officer or others.”[13] However, the vagueness of this ruling, once again, leaves excessive room for interpretation by officers. Racial profiling can play a significant role when officers determine whether suspects pose a threat — research on stop and frisk procedures, which again call into question individuals’ Fourth Amendment rights, illustrated that Black people were stopped at 10 times the rate of white people, raising concern over bias that may go into deeming an individual a “significant threat”.[14] This issue is best exhibited in Scott v. Harris 550 U.S. 372 (2007), a high-speed police chase ended by an officer clipping Harris’s car, rendering Harris quadriplegic. Harris began to flee after an officer activated his lights; the high-speed chase lasted approximately 10 miles. The crime Harris was culpable of was driving 73 mph in a 55-mph zone; nevertheless, the Supreme Court determined that the officer, under qualified immunity, would not face consequences, as Harris’s escape was considered a danger to others and upheld by the ruling in Tennessee v. Garner.[15] When a tape of Scott’s pursuit of Harris was released to the public, there were mixed decisions as to whether Scott’s decision was justified — in fact, Black viewers were more likely to indicate “no,” whereas white viewers were more likely to indicate “yes,”[16] alluding to the role racial profiling may have played in Scott’s decision to employ lethal force and, ultimately, the court’s decision to call upon qualified immunity. 

After George Floyd was murdered in 2020, Derek Chauvin was sentenced to 22.5 years in prison for second-degree unintentional murder, third-degree murder, and second-degree manslaughter.[17] While Floyd’s case arguably concluded with justice on the side of the wrongfully killed, the circumstances of a police officer unjustifiably using force against a Black person echoed those of past cases that were never heard in court because of the qualified immunity doctrine. One officer shot a 10-year-old child when attempting to fire at a non threatening dog [18]; another shot a 14-year-old boy who dropped his BB gun and raised his hands, following police directives.[19] Both of these cases were dismissed under qualified immunity, despite the fact that these cases are in flagrant violation of the Fourth and Fourteenth Amendments and were naturally highly scrutinized by the public. Furthermore, the dismissal of these cases set precedent for the defense of future police recklessness. 

5. Policy Change and Moving Forward

To address the nationwide response to the killings of George Floyd and Breonna Taylor, the latter of which received very few legal ramifications for the officers involved, several politicians have introduced acts or policies in hopes of ending qualified immunity. In 2020, Colorado state passed the Enhance Law Enforcement Integrity Act (SB20-217), permitting plaintiffs to bypass qualified immunity when pressing charges against law enforcement officials for the violation of their civil rights.[20] On the federal level, Reps. Ayanna Presley and Justin Amash and Sens. Ed Markey and Elizabeth Warren proposed an act in 2020,[21] which would amend Section 1983 of the Constitution to establish that the qualified immunity doctrine does not serve as “grounds for defense for officers that violate the law.”[22] Nonetheless, 35 state qualified-immunity bills “have died in the past months” or have been amended to allow for vague exceptions in favor of law enforcement officers.[23] Consequently, while the Ending Qualified Immunity Act may be an optimistic step in diminishing the role of qualified immunity in police brutality cases, this act 1) has yet to be introduced to Senate, which may see more divided responses because of its partisan gridlock -- as illustrated by the Senate block of the George Floyd Justice in Policing Act [24] -- and 2) may be overridden by loopholes in state laws, such as strengthened qualified-immunity rights of officers in Iowa and Arkansas.[25] 

Republican senators’ reluctance to pass police reform acts, in addition to heightened financial and social support for law enforcement, may prove the abolishment of qualified immunity incredibly difficult. The topic of police brutality has become exceedingly partisan; therefore, although qualified immunity may contradict the rule of law as outlined in the Constitution, politicians may be compelled to vote along party lines. Nonetheless, as current laws stand throughout most of the United States, qualified immunity remains a way in which government officials can behave above the law at the cost of human life and legal justice.

Notes:

1. Enforcement Act of 1871, 42 U.S.C. § 1983 (1871).

2. Skolnick, J. H., and D. H. Bayley. "Community Policing: Issues and Practices Around the World." Office of Justice Programs, 1988.

3. Harlow v. Fitzgerald, 457 U.S. 800 (1982).

4. Harlow v. Fitzgerald (1982).

5. Saucier v. Katz, 533 U.S. 194 (2001).

6. Saucier v. Katz (2001).

7. U.S. Const. art. III, § 2.

8. Saucier v. Katz (2001).

9. U.S. Const. amend. IV.

10. U.S. Library of Congress. Congressional Research Service. Policing the Police: Qualified Immunity and Considerations for Congress, by Whitney K. Novak. LSB10492. 2020. 

11. "U.S. Supreme Court Declines to Review Qualified Immunity Cases." Crabbe, Brown & James, LLP. September 23, 2020. https://cbjlawyers.com/u-s-supreme-court-declines-to-review-qualified-immunity-cases/.

12. “There’s Overwhelming Evidence That the Criminal Justice System Is Racist. Here’s the Proof.” Balko, Radley. The Washington Post. June 10, 2020. https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/. 

13. Tennessee v. Garner, 471 U.S. 1 (1985).

14. "Stop and Frisk." Legal Information Institute. https://www.law.cornell.edu/wex/stop_and_frisk.

15. Scott v. Harris, 550 U.S. 372 (2007).

16. Kahan, Dan, David Hoffman, and Donald Braman. "Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism." Harvard Law Review122 (January 2009).

17. Wamsley, Laurel. "Derek Chauvin Found Guilty Of George Floyd's Murder." NPR. April 20, 2021. https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial.

18. Corbitt v. Vickers, No. 17-15566 (11th Cir. 2019).

19. Nelson v. City of Battle Creek, Michigan, No. 18-1282 (6th Cir. 2020).

20. Sibilla, Nick. “Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights.” Forbes. June 21, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/?sh=6774c816378a. 

21. Ending Qualified Immunity Act, H.R. 7085, 116th Cong. (2020). https://www.congress.gov/bill/116th-congress/house-bill/7085

22. Kindy, Kimberly. “Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Every Bill.” The Washington Post. Oct. 7, 2021. https://www.washingtonpost.com/politics/qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1-42a8138f132a_story.html. 

23. Kindy, Kimberly, “End Qualified Immunity.” 2021.

24. George Floyd Justice in Policing Act, H.R. 1280, 117th Cong. (2020). https://www.congress.gov/bill/117th-congress/house-bill/1280 

25. Kindy, Kimberly. “End Qualified Immunity.” 2021

Bibliography:

Kahan, Dan, David Hoffman, and Donald Braman. "Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism." Harvard Law Review 122 (January 2009).

Kindy, Kimberly. “Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Every Bill.” The Washington Post. Oct. 7, 2021. https://www.washingtonpost.com/politics/qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1-42a8138f132a_story.html. 

Sibilla, Nick. “Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights.” Forbes. June 21, 2020. https://www.forbes.com/sites/nicksibilla/2020/06/21/colorado-passes-landmark-law-against-qualified-immunity-creates-new-way-to-protect-civil-rights/?sh=6774c816378a. 

Skolnick, J. H., and D. H. Bayley. "Community Policing: Issues and Practices Around the World." Office of Justice Programs, 1988.

"Stop and Frisk." Legal Information Institute. https://www.law.cornell.edu/wex/stop_and_frisk.

U.S. Library of Congress. Congressional Research Service. Policing the Police: Qualified Immunity and Considerations for Congress, by Whitney K. Novak. LSB10492. 2020. 

"U.S. Supreme Court Declines to Review Qualified Immunity Cases." Crabbe, Brown & James, LLP. September 23, 2020. https://cbjlawyers.com/u-s-supreme-court-declines-to-review-qualified-immunity-cases/.

Wamsley, Laurel. "Derek Chauvin Found Guilty Of George Floyd's Murder." NPR. April 20, 2021. https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-chauvins-murder-trial.

The IL Attorney General: Holding Law Enforcement Accountable

By: Reese Rosental Saporito 

Edited By: Hannah Cheves and Kiran Sheth

In today’s society, marginalized communities often suffer at the hands of law enforcement officials. Many times, lawsuits and complaints against these officials go unnoticed and unpunished. The most recent set of Illinois criminal law reforms includes Section 10-116.7, which allows the Illinois attorney general to sue law enforcement with reasonable cause.[1] This long overdue change will bring solace for those who previously suffered at the hands of government officials. 

Allowing the attorney general to get involved in such cases means that the system will become less discretionary, as actions by law enforcement will be scrutinized by higher authorities. Increased involvement by the state’s attorney general will help convict police officers for their wrongdoings and help reduce the popular culture stereotype that no police shootings are bad shootings.[2] Punishing police officers for engaging in conduct in violation of a person’s right to due process and a fair trial under the Constitution will lead to more accountability for police wrongdoing, and allow for due process for those affected. This can be seen with women’s rights in sexual assault cases in particular.[3]

The Illinois criminal justice system leaves many decisions to the discretion of law enforcement officers. There tends to be little oversight from mayors and elected officials when it comes to monitoring the police.[4] Discretionary decisions by police officers are often rooted in racial biases, thus creating specialized targets within our justice system.[7] Complaints filed against police officers for unlawful arrest or harm often have little impact due to loosely structured laws and regulations.[8] Therefore, improper police conduct is inadequately discouraged, punished, and prevented.[5] However, due to the recent Illinois criminal law reforms, enacted by the Illinois House and Senate, the attorney general will now be responsible for taking action against these violations. As long as there is reasonable cause to believe that the governmental authority in question acted in a way that violated the constitutional rights of another person, they can face prosecution.[6]

Now that the Illinois attorney general has the power to take civil action against officers for their wrongdoings, more police officers will be held accountable and punished for committing heinous acts that disproportionately affect communities of color. The criminal justice system is not impartial-law enforcement officials arrest people of color at much higher rates than white people. Oftentimes they are arrested for lesser crimes and often receive longer sentences than white people for the same crime. This will also deter behaviors that, “deprive any person of rights, privileges, or immunities secured or protected by the Constitution or laws,”[9] thus discouraging discretionary biases causing unequal treatment and unlawful arrests of targeted groups.

A major issue surrounding the actions of the police is how the media portrays their conduct. With this law in Illinois, there is potential for media headlines to start reading  “Officer Arrested” and the biases and discrimination held by police officers may no longer be ignored by the public. For decades, popular culture in America has perpetuated the idea that there are virtually no bad police shootings, such as in the TV series “Adam-12” on NBC.[10] This furthers the notion that a police officer firing their gun is always justified, without taking into account their circumstances or biases. This shields officers from repercussions involving wrongful shootings and creates the false narrative that an officer shooting their gun is self-defense or a “last resort”.[11] However, this is often not the case in real life. 

Officers turn to violence to assert dominance, even when it is not necessary, and the choice to act with violence is often a result of their own biases. They almost always justify this action by calling it an act of self-defense, and the legality is partially based on fear, an entirely subjective factor.[12] In 1989, the Supreme Court case Graham v. Connor established a standard of “objective reasonableness,” which held that one officer’s  choice to fire their gun will be compared to whether a reasonable officer  would have fired in the same situation or not.[13] Creating these subjective guidelines for whether or not an officer was justified in shooting their gun is ineffective in combating police misconduct, as they do not take into consideration the biases police officers have, nor the disparities in what groups are suffering from violent acts. These guidelines were not created to be objective, regardless of how they are defined, therefore, so long as they are in effect, people of color, lower-income people, and other disadvantaged groups will continue to suffer.  Now that these cases can be scrutinized by higher authorities such as the attorney general, police officers will receive ample punishment, such as termination of employment, fines, or even jail time, and set an example for how shootings will not be overlooked simply because the officer was scared, or claimed to be defending themselves.

By enacting these punishments, the attorney general will show law enforcement officers that these acts will no longer go unpunished. The attorney general will now be able to uphold a standard that there must be strong evidence that the officer  fired their gun because they were in a position of immediate danger or that it truly was their last resort. This will increase accountability and create a less discretionary justice system.

Allowing the attorney general to sue government officials has an impact that spreads further than racial biases and discretion in the field. It will also force police officers to do their job, regardless of what the officer’s  personal beliefs are, especially in cases of sexual assault. In Detroit, there are over 11,000 rape kits that have been sitting in a warehouse for years, untested and univestigated.[14] The deeper problem is that police officers do not believe women in such cases, and therefore do not sufficiently aid them in their fight to get justice against their rapists.[15] 

It is not the police officers’ right to decide who gets a chance at justice, and because they are not held accountable, they get away with not testing rape kits for years.[16] If a woman calls to report a rape, she is often encouraged to drop it, and if it does make it into the hands of a detective, it often closes with little investigation and no arrest.[17] In 98% of rape cases, the assailant goes free, making rape the easiest crime to get away with.[18] Based on the inaction of the police in Detroit, this could very well be because the rape kits are never tested, the women are brushed off, and police officers actively discourage women from even attempting to get justice.[19] 

If more attorney generals across the country gain the right to sue government officials like in Illinois, these officers will be forced to do their job, regardless of what their personal beliefs towards the victims are. An officer should report crimes without bias, enforce punishments against offenders, and investigate evidence. That will not happen until higher authorities actively punish misconduct. Police need to be held accountable by the attorney generals in all states and not allow these cases to be dismissed with no effort to bring justice on behalf of the women, particularly when many of these cases would be solved with even minimal effort from the police.[20] 

This bill, however, is not the end-all-be-all for criminal justice reform. While it will decrease officer discretion on the job, it could lead to increased judgment from prosecutors. Holding officers to a standard when it comes to firing their weapon and persecuting individuals will not allow them to get away with prejudice-based decisions they made in the field, such as shooting an unarmed suspect because of their race, regardless of whether they pose a threat. It will, however, allow for prosecutors to decide whether an officer’s actions were discretionary or if they were objectively correct in that situation. This leaves room for the prosecutor’s biases (racial, economic, gender, etc) to come in, which could result in law enforcement officials still walking free with no convictions for their crime. A way to combat this is the use of impartial juries.[21] The purpose of these juries is to reach an unbiased decision about the case, which while not foolproof, is the best way to eliminate the prosecutor bias that could result even if police discretion is decreased.[22] This is crucial in the process of removing preconceived opinions from the criminal justice system, and is a possible next step after the passing of bills like the Illinois ones.

Policing the police is long overdue. For too long they have gone into the field basing their decisions on biases and calling it discretion. In Illinois, the most recent criminal justice reform includes giving the state attorney general the power to sue government officials if they engage in conduct that violates the constitutional rights of others. Until these authorities such as the attorney general enforce accountability, law enforcement officials will continue to uphold the precedent that police officers are immune to repercussions in our justice system. Police officers being liable for their actions will help solve crimes and bring justice for those who have been unlawfully silenced by the legal system.

NoteS:

1. Allowing the IL Attorney General to sue government officials.

2. Alyssa Rosenberg, “In pop culture there are no bad police shootings.”

3. Barbara Bradley Hagerty, “An Epidemic of Disbelief.”

4. Professor Joanna Grisinger Lecture 6.3-How do we police the police?

5. Grisinger-Lecture 6.3.

6. Allowing the IL Attorney General to sue government officials.

7. Professor Joanna Grisinger Lecture 6.2-How are criminal laws enforced? Policing. 

8. Rosenberg, “In pop culture there are no bad police shootings.” 

9. Allowing the IL Attorney General to sue government officials.

10. Rosenberg, “In pop culture there are no bad police shootings.” 

11. Rosenberg, “In pop culture there are no bad police shootings.” 

12. Rosenberg, “In pop culture there are no bad police shootings.” 

13. Rosenberg, “In pop culture there are no bad police shootings.” 

14. Hagerty, “An Epidemic of Disbelief.”  

15. Hagerty, “An Epidemic of Disbelief.”  

16. Hagerty, “An Epidemic of Disbelief.” 

17. Hagerty, “An Epidemic of Disbelief.” 

18. Hagerty, “An Epidemic of Disbelief.”  

19. Hagerty, “An Epidemic of Disbelief.” 

20. Hagerty, “An Epidemic of Disbelief.”

21. Professor Joanna Grisinger Lecture 6.6-How are criminal laws enforced? Juries.  

22. Grisinger Lecture 6.6. 

Bibliography:

Grisinger, Joanna, Lectures 6.2, 6.3, 6.6.

Illinois Attorney General - ATTORNEY GENERAL RAOUL’S POLICE REFORM, CRIMINAL JUSTICE INITIATIVES PASSED BY GENERAL ASSEMBLY, ag.state.il.us/pressroom/2021_01/20210113.html. 

“In Pop Culture, There Are No Bad Police Shootings.” The Washington Post, WP Company, www.washingtonpost.com/sf/opinions/2016/10/26/in-pop-culture-there-are-no-bad-police-shootings/. 

Story by Barbara Bradley Hagerty. “An Epidemic of Disbelief.” The Atlantic, Atlantic Media Company, 24 July 2019, www.theatlantic.com/magazine/archive/2019/08/an-epidemic-of-disbelief/592807/.