Lawyers on the Council geek out on bias-free policing bill

On Wednesday, Council President Bruce Harrell brought to the Council an early draft of an ordinance to prohibit biased policing and put remedies in place when it happens. If you’ve spent any time with lawyer — especially groups of lawyers — you know how much they love to nerd out over the fine points of the law. That was on full display Wednesday morning.

Harrell, himself a lawyer, was joined by Council members Gonzalez, Juarez, and Bagshaw — also all practicing attorneys before joining the City Council.

Harrell set up the discussion by referring back to previous conversations last July and August, before there was a concrete proposal in place for structuring policy accountability. Back then he and others had noted that proving biased policing is very difficult, and as such it’s difficult to get lawyers to even take the cases on behalf of clients. His hope was that they could write an ordinance that would establish the bar for proving biased policing, and a cause of action that would allow for damages and attorneys’ fees to encourage lawyers to represent victims. With a lot of help from the Council’s central staff, they now have a draft, though it hasn’t been officially introduced yet.  Here’s my post from earlier in the week, dissecting the draft bill.

Gonzalez, who specialized in civil rights cases, started the lawyerly geek-fest started by highlighting her concern with the general prohibition:

Police Officers shall be prohibited from making decisions or taking actions that are influenced by unfair bias, prejudice, or discriminatory intent. Any person who is the victim of biased policing shall be entitled to compensation as provided under this Chapter 14.22.

In particular she was concerned with the phrase “influenced by.” She noted that this was a new phrase, whereas the case law attached to the Civil Rights Act section 1983 refers to someone being “substantially motivated” or having a “motivating factor.” By inventing a new phrase it becomes untested law instead of invoking battle-tested language whose meaning is well understood.

The draft bill also allows a victim to pursue a claim in any court of competent jurisdiction, or with the city Hearing Examiner, but not both. This led to a long discussion of appropriate jurisdictions — including pursuing a biased policing claim as part of a larger case or related claim — and whether choosing one exhausts other legal remedies.

There was much discussion over whether the court or hearing examiner would be empowered to sanction someone if their claim if found to be frivolous or brought in bad faith. Harrell added such ability into the ordinance to discourage harassment of police officers, but Gonzalez was strongly opposed to it since it could be used as a retaliatory tool to put people who file claims in the position of defending themselves; in her experience, the city would always file such a counter-suit. She pointed out that the SLAPP suit doctrines (which prevent lawsuits from being used as a weapon) deal with this, as do existing procedural rules that require lawsuits to be filed in good faith.

Harrell also noted that the draft bill focuses on required data collection within SPD, and reporting through an appropriate office (potentially the Inspector General under the new police accountability structure) to help prove the existence of bias within the department where it exists.

Lisa Daugaard, also a lawyer and a member of the CPC, participated in the discussion as well. She noted that the CPC has been focusing its efforts away from individual officers’ actions since it’s so difficult to prove bias at that level, and toward institutional disparate impact.  She suggested that there might be an opportunity to incorporate a prohibition on disparate impact into the ordinance as well. She reminded everyone that the Supreme Court had ruled in 2000 that Title VI of the Civil Rights Act of 1964 does not provide for private rights of action for disparate-impact cases, so the city would need to create its own.

Pierce Murphy, current OPA Director, also added a few thoughts. He suggested that the hearing examiner might find it useful to have an option to recommend mediation. He also noted that in the last year the OPA has seen several complaints that weren’t biased action by police officers, but rather biased lack of action:  denial of service, or refusal to take a report or make an arrest. Murphy suggested the Council might want to think about how to allow for those sorts of claims as well.

Harrell and the Council staff took copious notes so they could further re-work the bill before introducing it. No doubt Gonzalez, Juarez and Bagshaw will continue to weigh in along the way as well. Given its inevitable reliance on the structures that the police accountability legislation will put in place, Harrell may choose to wait until May, when that legislation is complete, before bringing his bill forward.

You can watch the Council’s lawyer nerds here (skip to the 1:25:00 point in the video).