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Our nation is in the midst of unprecedented turmoil as escalating mistreatment of minorities by members of law enforcement has exposed deep and systemic problems in our criminal justice system.

Qualified Immunity Battle

The murder of George Floyd at the hands of Minneapolis police officers has put a spotlight not only on the disparities of the institutions of justice but also on how institutionalized racism perpetuates unequal justice for Blacks and Latinos. Last month, St. Louis prosecutors declined, yet again, to charge the Ferguson police officer who shot Michael Brown, six years ago. The prosecutor told reporters at a press conference he didn’t think he could prove the case at trial.

All too often, the legal rules of qualified immunity—and District Attorneys like Los Angeles County DA Jackie Lacey—shield police officers who are sworn to protect and to serve, even as the death toll from police abuse rises.

Jackie Lacey is currently involved in the fight of her political life as she faces a tough re-election campaign against challenger, George Gascon. Protesters expressing outrage at incidents of police brutality and abuse have demonstrated both at Lacey’s office and at her home – and rightly so. In 2014, Lacey declined to prosecute two Sheriff’s deputies who shot and killed an unarmed man. In their initial version of events, officers said they believed the man – Jose de la Trinidad - had a gun and, fearing for their lives, shot him when he turned to face them. But a witness contradicted that statement, saying the man had been shot while his hands were raised. And the coroner’s autopsy revealed that the man had been shot a total of seven times, including five times in the back.

In February 2014, Lacey permitted the deputies to give a new version of the events, saying that the man had ‘rotated his upper body to the left’, in an effort to explain the shots to the back. That gave Jackie Lacey coverage as the reason not to press charges.

Her decision not to prosecute the deputies proved costly, though. In 2015, the LA County Board of Supervisors approved a $5.3 million settlement for the family of the dead man. The family’s attorneys said it was outrageous and a miscarriage of justice perpetrated by the D.A.’s office that Lacey had decided against prosecuting the officers.

As it turns out, the Los Angeles Police Protective League and the Association of Los Angeles Deputy Sheriffs had endorsed Lacey in her 2012 election. These two organizations represent around 20,000 rank-and-file officers. In her March primary, more than $2.2 million for her campaign were from law enforcement unions. There’s no reason to think those unions will not support her in November.

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Another case involving the LAPD highlights the inequities in how police officers are treated versus civilians. Officer Frank Hernandez shot and killed a man in 2010. It was the second time that Hernandez had shot a civilian in the line of duty. In the first shooting, back in 2008, the actions by Officer Hernandez warranted ‘administrative disapproval’, but Hernandez was allowed to remain on the force. Two years later, Hernandez shot and killed an immigrant from Guatemala who was drunk at the time. Hernandez says the man lunged at him with a knife. But at his federal civil trial for the killing, three civilian witnesses – one Black woman and two Latinos - contradicted Officer Hernandez. Jurors, however, believed the version given by Officer Hernandez and again Hernandez was allowed to remain on the force. In June, 2020, Officer Frank Hernandez was arrested after being caught on a cellphone camera beating a man in Boyle Heights.

But any efforts to seek justice against officers in a civil case, like the family of a man killed by the two Sheriff’s deputies, would be hindered by so-called qualified immunity. Qualified immunity protects state and local law enforcement officers from monetary liability for unconstitutional actions if the officer acted in ‘an objectively reasonable’ manner.

All of these – District Attorneys declining to prosecute officers, police departments declining to fire bad officers, jurors taking the word of officers over Black and Latino witnesses and qualified immunity – are all failures of a system that has protected law enforcement from being held accountable in criminal cases and civil cases. The only way for victims of police abuses is to seek redress by filing civil lawsuits.

Supreme Court decisions upholding the rights of officers have stymied the pursuit of justice for these families, and Congress must intervene to help families of those killed in the line of a police officer’s duty. SCOTUS recently declined to hear eight different cases that challenged qualified immunity prompting Justice Sonia Sotomayor to lament in her dissent that the courts have created “an absolute shield for law enforcement officers.”

The solution is with the Congress to overrule Supreme Court decisions that give police officers such a broad “qualified immunity to police officers, because, as explained by Leon Friedman: “In 1991 Congress passed a broad, new Civil Rights Act that specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that severely restricted and limited workers' rights under federal antidiscrimination laws.”

We still have a steep hill to climb but it’s encouraging to see the continuous peaceful protests in cities across our state and the country calling for social justice and police reform. This movement will not rest until more is done to ensure all citizens are treated fairly under the law.

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Luis Carrillo

Luis Carrillo is the founding partner of Carrillo Law Firm in South Pasadena. For more than 40 years Mr. Carrillo has pursued justice on behalf of residents of the community who have experienced civil rights violations due to misconduct by law enforcement officers, and on behalf of childhood sexual abuse victims.