( Hans Pennink / AP Photo )
NYS Senator Robert Jackson (D 31st, West & Upper Manhattan) talks about his proposed legislation to end qualified immunity for police officers and other public officials in New York State.
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Brigid Bergin: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. I'm Brigid Bergin, WNYC's senior political correspondent filling in for Brian who is off today and tomorrow. One of the big changes that advocates of police reform hope to see enacted is ending what's called qualified immunity, which makes it sometimes impossible to sue police officers who violate people's constitutional rights. It's part of the George Floyd Justice in Policing Act passed by the House and a big stumbling block to crafting a bill that could pass the Senate. It was part of the reforms passed by the New York City Council and signed by the mayor. There's a pending bill in Albany that would end it as well.
To talk more about what qualified immunity does and doesn't do and why ending it is seen as an important step in police reform, I'm joined now by New York State Senator Robert Jackson, the sponsor of the state legislation that would end qualified immunity. Senator Jackson represents the 31st Senate District, which sneaks up the west side of Manhattan from West 26th Street all the way to Marble Hill in the Bronx, and he chairs the Senate Committee on cities. Welcome back to The Brian Lehrer show, Senator Jackson.
Senator Robert Jackson: Thank you for having me.
Brigid Bergin: Now, let's start by explaining qualified immunity. Its immunity for public officials, usually police officers, from being sued in civil court for having deprived someone of their constitutional rights. The Supreme Court created it for officials operating in "good faith" meaning who they thought weren't following the law. Correct?
Senator Robert Jackson: It clearly establishes the fact that police officers are expected to do their job and all law enforcement officers. But when you use excessive force, when you kneel on someone's neck for nine and a half minutes, when other people are sitting on your back, when you have them in handcuffs and you're punching people in the head, when you shoot an individual allegedly with a taser but you shoot them with a gun allegedly by mistake, these are all problems as far as enforcing the law.
This bill to end qualified immunity would be a broadband bill in order to basically ensure that people's rights are not violated under federal law and state law. That's the bottom line.
Brigid Bergin: Just to be clear, it's got nothing to do with criminal prosecutions. I saw one commentator pointing out that former officer, Derek Chauvin, might have a civil case against him dismissed even though he was just convicted in a criminal court, for example.
Senator Robert Jackson: This bill has nothing to do with criminality. It has to do with civil rights. Here's an example. I watched on the news a Black Lives Matter rally. People were walking in the street, and a police officer along with a white shirt-- A white shirt is I think a lieutenant or a captain. They were walking together. A young woman was filming people walking, and he knocked her down. She had to be hospitalized.
In my opinion, he violated her rights under the law. She was just filming everyone. That can no longer be acceptable. That individual cannot then, in my opinion, claim qualified immunity because he violated her rights under the law.
Brigid Bergin: Listeners, we want to bring you into this conversation. Have you been affected by qualified immunity, either protected by it in what you thought was a legitimate exercise of your authority or prevented from seeking accountability for having your rights violated? Or do you just have a question for Senator Jackson about his legislation? Call us at 646-435-7280. That's 646-435-7280. Senator Jackson, can you talk about how qualified immunity can get in the way when suing in civil court given how hard it is to get indictments much less convictions against police officers?
Senator Robert Jackson: That's why compared to 10 years ago, almost everything now is being video recorded. In essence, prior to having video recordings, people would have to prove beyond reasonable doubt that their rights were violated. Now, it's all on video. That's one thing. Then number two, it gives the people the opportunity to then file actions against law enforcement officers where their rights were violated under federal or state law. Period.
Brigid Bergin: Your legislation, given the reforms signed by the mayor, would it also affect New York City or it does just pertain to state employees?
Senator Robert Jackson: This bill when it's passed into law will cover the entire State of New York. New York City has instituted a very narrow scope of, regarding my understanding is the Fourth Amendment against search and seizure and possibly also including excessive force. This bill that we have, Bill Number S1991, that's the Senate Bill. The Assembly Bill is A4331 by my colleague, Pam Hunter of Syracuse, basically, would be for the entire State of New York.
Brigid Bergin: Who pays when a police officer is sued in civil court? If I'm reading the bill correctly, it says it's the employer who will pay if the suit is successful. Can you talk through how that would work in an example?
Senator Robert Jackson: It has not occurred here in New York State, but as an example, when you have-- and this was another case that we saw on the news, where you have someone as a law enforcement officer, you have them on the ground, face down, already handcuffed, and another police officer is hammering multiple times the individual in the head when he's already on the ground, face down, handcuffed. Excessive force.
In my opinion, that officer probably cannot use qualified immunity because of the fact that there was excessive force when it was not necessary. That's an example that we see time and time and time again. If that's the case, then the officer will be liable from a civil point of view.
Brigid Bergin: Senator Jackson, New York City paid out over $200 million per year in fiscal years 2019 and 2020 in claims against the NYPD. That seems like a lot. Do you think adding to the amount cities and towns pay out will be enough to force changes in police behavior?
Senator Robert Jackson: Ideally, what I hope and expect is that police departments all over New York State will be able to train or give our law enforcement officers more training in understanding how to de-escalate things, rather than moving into a situation where you have a confrontation, where then force is going to be used to either apprehend the individual. That's what we're trying to stop. We don't want anyone to get hurt. Individuals exercising their right under the law, or any law enforcement officers getting hurt. We don't want anyone getting hurt. But where law enforcement officers violate our rights, then people have a right to sue.
Brigid Bergin: Let's go to the phones. Renée in Manhattan, I think you were looking for some clarification from Senator Jackson. Welcome to WNYC.
Renée: Thank you and good morning to you both. My question is piggybacking on what you just asked. The money going to plaintiffs is coming out of our tax dollars. Why not have the police insured so that as a police officer you have to have insurance in order to pay out any possible losses or wins? The second thing is, is that included in your bill some form of that where us as taxpayers will not be responsible for [unintelligible 00:09:20] over money to police officers?
Senator Robert Jackson: My staff and I are researching all of the aspects of this in order to try to answer every question. Bottom line is that where a police officer violates an individual's right, then the individual has a right to sue from a civil point of view in order to receive compensation. That's what it's about. People are injured, people are hurt, people are shot, and people have a right to take action against police officers that violate their rights under the law. Whether or not it's the City of New York or whether or not it's a town or municipality or if that individual has to pay, then that's what it has to be.
Brigid Bergin: Thanks, Renee. Let's go to George in Westchester.
George: Yes, hello.
Brigid Bergin: Welcome to WNYC, George. You are a former parole officer. Is that correct?
George: Yes. Which are considered in New York State public officials. Good morning. I wanted to ask the senator whether this law is also going to affect public officials such as politicians who are also public officials like police officers. I remember when I was working I was sued twice because I had a mental health case [unintelligible 00:10:50]. Twice we had to take someone into custody. One time the guy busted his head, he fell on the ground and we went to court. In one of the cases, he probably won $20,000 but since I was indemnified and I'm wondering if that's the same as being the term that he used qualified immunity. Indemnified.
The money came from the state, it didn't come from my pocket. It's a couple of questions. The first is, does the law include public officials such as the senator and other legislators? If the police officers are losing court, whether the monies are going to come out of their pocket or the agency's pocket?
Brigid Bergin: Thanks, George. Senator Jackson.
Senator Robert Jackson: Sure. This bill includes all qualified individuals. Meaning individuals that are acting on behalf of their employers in the State of New York. I would assume that you talk about does it include state senators and state assembly members? It includes all government actors. Period. No and, if, or but. As far as, I don't know, in that case that you're referring to whether or not there was a settlement before trial or not. If in fact, the municipality in my opinion decides it's better that they settle rather than go to trial. That's a decision that's made by the local government officials.
Brigid Bergin: Thank you for that. You're listening to The Brian Lehrer Show on WNYC. I'm Brigid Bergin, WNYC's senior political correspondent filling in for Brian today. I'm speaking with New York State Senator Robert Jackson. We're going to go to one more caller. Let's talk to Darlene in Suffolk County. Darlene, welcome to WNYC.
Darlene: Hi, thank you for having me. My case involves qualified immunity. My son, Dante Taylor, was beaten by correctional officers in Wende Correctional Facility in 2017. He subsequently died after he was severely beaten by these officers. Qualified immunity prevents people from getting officers to be accountable. This qualified immunity should not exist. In my particular case, we're in federal court right now. It's been eight months. We're waiting for the judge to make a decision on whether or not these officers get qualified immunity which shouldn't even be a thing.
In my case, the correction commission did an investigation and admit, substantiates the fact that these officers beat my son. He had blunt force injuries all over his body. As I said, he was 22 years old and he died.
Brigid Bergin: Darlene, I'm so sorry.
Darlene: Thank you. It's now been nearly four years where there's been zero accountability. I was recently able to get through a foil request, a transcript of the administrative hearing which is a joke that they have in the department of corrections. With the department of corrections, basically fired four of the officer but they were able to keep their job through binding arbitration with the union. The department of corrections admits that these officers did something wrong but yet they still have jobs. I'm a nurse practitioner and some of these officers make double what I make because they work overtime and things like that.
Brigid Bergin: Darlene, I'm again so sorry about your story but I want to bring Senator Jackson into the conversation. Senator Jackson, would your legislation address a scenario like what Darlene is describing?
Senator Robert Jackson: The answer is yes. Our bill covers the entire state of New York as far as corrections, police and all other government actors. Remember I mentioned earlier about the fact that what's the difference between now and years before is that there's so many videos all over the place in order to show what occurred. In this particular situation, let me just say, I'm so sorry that your son's passing as a result of what you say that happened to him that I think you said it was Wende Correctional Facility. Obviously, you're trying to seek justice for him in court because based on what you said you feel that his rights were violated under the law and you're trying to do that.
You said that the judge is going to determine whether or not to give these police, the correction officers, qualified immunity. The US Supreme Court in 1967, it was the Jim Crow area which basically said that there's two tests to determine whether or not to give or not give qualified immunity. The first one part would the court would consider whether their government official violated the US constitution. Our bill says violate federal law and/or state law.
Then the second part and the court determined whether a reasonable person would have known that their conduct was unlawful. Hopefully, the judge will decide in your case that the conduct was clearly unlawful. Obviously, you said that you were in Federal Court, and our bill, anyone can bring action in any jurisdictional court in the state of New York or Federal Court.
Brigid Bergin: Thank you for clarifying that Senator Jackson. Again, Darlene, our deepest sympathies for the loss of your son. Thank you for calling and sharing your story about your experience with qualified immunity.
Senator, as I mentioned in introducing you, ending qualified immunity is a stumbling block in passing the George Floyd Justice in Policing Act at the federal level, despite the fact that its critics come from both sides of the aisle. You've got the Cato Institute, a right-leaning libertarian think tank that opposes it. Supreme Court justices, Clarence Thomas and Sonia Sotomayor, who are usually on the opposite, opposite sides of decisions both having criticized it. Do you think its time has come?
Senator Robert Jackson: Well, I think obviously the time has come and that's why you have the House passed the bill. That's why besides the bill that I have, the direction overall is about ending qualified immunity which basically, maybe that was okay in 1950 and 1960 but this is 2021. To ensure that people's rights are not violated under the law is absolutely our focus. Everyone, no matter who you are has to be held accountable. That's why this bill will go forward in the state Senate. That's why we have a total, including myself, of 18 sponsors including myself to this particular bill. That's why we have so many people and we expect it to go forward over the next four to six weeks.
Brigid Bergin: I understand. I think there are only about 15 session days left in this session calendar through June 11th, I believe. Is it scheduled for a floor vote? What's the trajectory in the coming weeks for your legislation?
Senator Robert Jackson: Well, we're pushing for it to happen. Obviously, we have a lot of advocates out there and groups that want to end quantified immunity. We're going to be pushing forward, and we hope and expect that it will take place before we leave session, which is June 10th.
Brigid Bergin: I was close, June 10th not June 11th. Senator, before you go, I wondered if you could take a moment to reflect on the fact that the lawsuit you filed way back when to provide equitable funding for high needs public schools is finally being fully implemented. How many years after the courts ruled in favor of the campaign for fiscal equity?
Senator Robert Jackson: The highest court ruled in 2006. Then the state legislature and the governor agreed to a formula in 2007. Finally, we're moving towards fulfilling the $4 billion that was owed not to New York City, but to all of the schools in New York State. We're hoping that the money will be there the second year, and the third year, and so that every child in New York State will have the opportunity to get a good education.
You know one thing, sometimes to get results, you have to walk a mile for a child. In this particular case, we are walking a mile for justice, so that everyone's rights will be protected under federal and state law. We hope and expect that that will happen within the next month, but if it doesn't, we will continue to fight.
Brigid Bergin: Absolutely. Since we're here together, I want to take a moment to ask about the mayoral primary. You rescinded your endorsement of Scott Stringer. Have you decided who you will back in the mayoral primary?
Senator Robert Jackson: Well, I've been called by several mayoral candidates, but the bottom line is right now, I am focusing on doing my job up in Albany dealing with the whole issue of qualified immunity and dealing with what we're going to be voting on this week in session. I have not decided if I'm going to go with anyone right now. I have a city council race up in District 10, where I live, where I want to just be involved with that.
Brigid Bergin: Have you gotten any feedback from your constituents about your decision to rescind the endorsement?
Senator Robert Jackson: I think that people overall are pleased with that respect, considering what the allegations were, considering other colleagues in the state senate and state assembly and in Congress have pulled back, but as you know, everyone is innocent until proven guilty. The fact that Scott Stringer and his situation happened about 20 years ago, I think that everyone has to make a decision, what's best for them. In my opinion, understanding, I decided it was best for me to pull away.
Brigid Bergin: I'm wondering what you make of the fact that Governor Cuomo seems determined to run for re-election despite the fact that in his case, it's not just one accusation, it was multiple accusations from other women.
Senator Robert Jackson: Well, the governor as an individual, he has a right to wait to see what happens as far as the Attorney General's investigation, the wait to see what happens with the assembly impeachment process. Bottom line is that he has to make his own decision. He's already decided he's not resigning, even though I and others had said that he should resign. I basically said he should step aside and Kathy Hochul, lieutenant governor should rule.
Brigid Bergin: One last question, I mentioned your district and the way it runs all the way from 26th Street to Marble Hill and appears to be continuous in a couple places only if you count the Westside Highway and Riverside Park [chuckles] where people don't actually live.
Senator Robert Jackson: You know why I'm laughing, right?
Brigid Bergin: [chuckles] Well, redistricting this year, New York is now going to have this bipartisan commission draw the maps. Do you think the democratic supermajority will go along with a bipartisan redistricting plan, and maybe tell us all why you're laughing?
Senator Robert Jackson: I'm laughing because if you look at my district, it's a very gerrymandered district that was done years ago by the republicans, we call it like it is, in order to dilute the power of the Upper West Side. Upper West Side is very powerful voting bloc. As you know, when people come to New York City to raise funds, the funds are raised mainly on the Upper East Side and Upper West Side. As a result of that, the Upper West Side is divided into four different states senators.
Can you imagine if you were a state senator Jose Serrano from the Bronx, and you come from the Bronx into East Harlem and then come into Upper West Side. For me, Marble Hill, my district is 13 miles long of Manhattan, and that's not the way it should be. I have to literally look at a map to determine exactly where in Midtown my district is because it zigzags all over the place. It should not be that way. That's what we hope to correct when the commission deals with it.
Brigid Bergin: All right. We'll find out this fall, I suppose. Thank you, Senator Robert Jackson, who represents the strangely drawn 31st Senate District and chairs the committee on cities.
Senator Robert Jackson: Thank you. Have a good day.
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