The ACLU of Louisiana, with the help of private for-profit law firms and law school legal clinics, plans to “unleash a wave” of litigation across the state to combat racially discriminatory policing.
“We are trying to respond to a gap in police accountability,” said Nora Ahmed, legal director at the organization. “But we are doing it as a compliment to all of the attempted legislative reforms, and policy reforms, and discussions and actions regarding dismantling and reimagining the police force.”
The program, which was announced earlier this month, is seeking to enlist 100 law firms to handle initial litigation efforts as many as 1,000 cases and 25 law school legal clinics to handle potential appeals. So far, 18 law firms have signed on to the effort.
Ahmed said that bringing individual excessive force and racial profiling cases that weren’t “heinous” could often be cost prohibitive, because the cases often take a lot of work and the cost of litigation could outweigh the potential damages recovered.
But in a moment when large, wealthy law firms are signaling that they want to respond to the national moment of reckoning with the police following the killings of George Floyd, Breonna Taylor, and others, Ahmed said the organization saw an opportunity.
“We looked at all of these statements by big law firms — largely the wealthiest in the nation, some of them in the world — who indicated that at this time they are interested in responding to the moment,” Ahmed said.
“Understanding that law firms are generally engaged in aerial warfare — and I’m talking about class action context, or mass action — what would it look like if we were to engage them in ground warfare, where we would bring numerous cases challenging unconstitutional conduct in a single locale here in a specific case?”
The plan is being pitched as a “litigation blueprint” that other states will be able to follow in order to challenge racist policing across the country.
The law firms will partner with local organizations and activists in specific locations, in order to identify plaintiffs and bring cases against individual officers for unconstitutional stops and seizures. The ACLU of Louisiana is hoping that each law firm could bring up to ten cases in a given location.
There are a number of goals. One is to apply pressure to local police and state police departments to alter potentially racist and unconstitutional conduct they are engaging in.
“We’re putting law enforcement agencies on notice: the era of impunity is over,” Ahmed said in a press release. “Regardless of the outcome of each individual legal action, the sheer volume of cases will help incentivize police districts and individual officers to alter their conduct and respect the constitutional rights of the people they serve.”
Fabian Blache, Executive Director of Louisiana Association of Chiefs of Police, declined to comment on the ACLU of Louisiana’s plan.
There is some evidence that broad racial discrimination exists in law enforcement agencies throughout Louisiana.
A 2018 study by the Southern Poverty Law Center found that “although data on policing in Louisiana are sparse, available data and reporting strongly suggest that Louisiana law enforcement officers disproportionately target people of color in traffic stops and arrests.”
The study noted that in 2016, Black people were nearly three times as likely as white people to be arrested for marijuana possession than white people in Louisiana, despite federal data showing that white people and Black people use marijuana at about the same rates.
It also found that nearly a third of law-enforcement agencies in the state didn’t have written policies on racial profiling.
The Bernice Police Department in North Louisiana responded to the SPLC’s survey on local department policies by saying, “We have no written policies on racial profiling since we do not racially profile.” (Even when department’s had written policies, they were themselves sometimes troubling. The title of the Tickfaw Police Department’s policy on racial profiling, for instance, was “Ethnics.”)
When the New Orleans Police Department was investigated by the Department of Justice in 2009, it found that there was “reasonable cause to believe that NOPD engages in a pattern or practice of discriminatory policing in violation of constitutional and statutory law.” (The department is now under a federal consent decree, meant to bring it into constitutional compliance. Its policy manual includes a section on “bias free policing.” And other sections of the manual, including the one that covers police stops, explicitly prohibit racial profiling.)
The Baton Rouge Police Department was under a consent decree for 39 years due to discriminatory hiring practices before it was lifted last June. (The department has a policy against detaining individuals “based solely on a common trait of a group,” according to the SPLC report.)
There have also been instances of individual officers across Louisiana engaging in racist behavior.
In 2017, in the small town of Estherwood, Louisiana, an officer was suspended for sharing a racist meme on Facebook. Less than two years later he became the chief of police. More recently, an officer in Kaplan, Louisiana was fired after commenting on a news story that it was “unfortunate” that coronavirus hadn’t killed more Black people.
Ahmed said that the organization has not decided on the specific locations where it would focus litigation, but was developing a “heat-map” of where they thought they would likely see the most cases. But she also said that they would not limit their scope to just those areas.
In addition to changing the conduct of departments and officers, the litigation effort is also an attempt to challenge and roll-back “qualified immunity,” which limits civil legal action against officers who engage in unconstitutional activity if they did not intentionally violate “clearly established” law. That can mean that litigation seeking money damages can be stopped if an officer’s actions do not closely mirror another case that has already been ruled illegal, a standard that can be difficult to overcome
“The idea is not that we are going after, directly, the police district, we are going after particular officers engaged in the unconstitutional conduct, under the premise that when you engage in unconstitutional conduct, you are not doing that within the scope of your authority,” Ahmed said.
Earlier this month at the Louisiana Legislature, a bill that sought to limit qualified immunity was voted down in committee.
Ahmed said they are continuing to recruit law firms for the project, and hoped to start bringing cases in the next 3 to 4 months.
In addition to the legal and police-conduct related goals, Ahmed said the program was also seeking to draw attention to stories of racist policing that would otherwise not be told.
“It’s very important for the country to see that this is really happening all the time,” she said, “to so many people whose names don’t necessarily get repeated every day in the press.”