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NAACP Legal Defense and Educational Fund Inc. (LDF) New York Office Washington, D.C. Office 40 Rector Street, 5th Floor 700 14th Street, NW, Suite 600 New York, NY 10006-1738 Washington, D.C. 20005 T 212.965.2200 T 202.682.1300 F 212.226.7592 F 202.682.1312 www.naacpldf.org December 4, 2020 Via Electronic Mail H.E. Michelle Bachelet United Nations High Commissioner for Human Rights Palais Wilson 52 rue des Pâquis CH-1201 Geneva, Switzerland ([email protected]) ([email protected]) ([email protected]) Re: Implementation of Human Rights Council Resolution 43/1 Dear High Commissioner: On behalf of the NAACP Legal Defense and Educational Fund, Inc. (“LDF”), we write in response to the call for input for the preparation of a report requested by the United Nations Human Rights Council (Council) Resolution 43/1. Specifically, the Resolution invites the Council to create a report on “systemic racism, violations of international human rights law against Africans and people of African descent by law enforcement agencies, especially those incidents that resulted in the death of George Floyd and other Africans and people of African descent, to contribute to accountability and redress for victims.”1 Addressing the systemic issues relating to law enforcement’s unnecessary violence and misconduct towards Black people in the United States will require (1) policies creating a national use of force standard that limits the use of force and allows officers to use force only as a last resort; (2) strategies to identify and remove those who hold white supremacist views from law enforcement; (3) laws and policies that prohibit racially biased policing strategies and hold law enforcement accountable for violating this prohibition; (4) national data collection systems that track officer misconduct and identify disparate impact of agencies’ policing practices; (5) independent and transparent investigations of police misconduct; and (6) elimination of legal barriers to accountability such as Law Enforcement Officers Bills of Rights and the judicial doctrine of qualified immunity. LDF is the nation’s first and premier civil rights legal organization devoted to racial justice. Founded in 1940 by Thurgood Marshall, who later became the nation’s first Black U.S. Supreme Court Justice, LDF’s mission is to achieve racial justice, equality, and an inclusive society and to fulfill the promise of full and equal citizenship for Black people and other people of color guaranteed by the 14th Amendment to the United States Constitution. In 2015, LDF launched a Policing Reform Campaign in the aftermath of the police killings of Eric Garner, Michael Brown, Sandra Bland, Walter Scott, and Freddie Gray– and public demands for police accountability. That campaign has transformed into LDF’s Justice in Public Safety Project, which uses litigation, policy, advocacy, research, community organizing, and strategic communications to: (1) ensure accountability for police brutality and misconduct through community oversight and changes to laws, policies, and practices; (2) promote policing and public safety practices that eliminate the harmful influence of racial and other biases; and (3) support a new paradigm of public safety that ends police violence and drastically reduces the presence of armed law enforcement in communities of color. It is with this decades-long experience and commitment that we provide information and suggestions for the proposed United Nations report. As detailed below, there are over 18,000 independent law enforcement agencies that function primarily at municipal and county levels with little to no oversight from communities, or state and federal governments. These law enforcement agencies also have a history of engaging in racially-biased practices—dating back to the enforcement of the black codes and Jim Crow laws—that have resulted in systematic violations by law enforcement officers of the rights of Black people and communities throughout the U.S., in violation of the U.S. Constitution and international law.2 I. United States Law Enforcement Agencies Use Force More Frequently Against Black People, Including Peaceful Protesters. Under international human rights principles, law enforcement officers may use force only when necessary.3 The use of deadly force is permitted only as a last resort to protect themselves or others from death or serious injury.4 In the United States, an officer’s use of force is governed by the Fourth Amendment to the U.S. Constitution. The constitutionality of an officer’s use of force depends on whether it was “objectively reasonable” in light of all the facts and circumstances at issue, including the severity of an offense a person has committed.5 Studies show that police in the United States kill and use force against Black people relative to white people at a higher rate. Between 2015-2019, Black people accounted for 24.2% of people shot and killed by police despite representing only 13.2% of the population.6 In Tulsa, Oklahoma, while Black people constitute only 15% of the city of Tulsa’s total population, in 2019, they comprised 37% of people against whom Tulsa Police Department officers used force.7 Federal investigations have also shown a pattern or practice of excessive force by law enforcement officers against people who pose no threat to officers or the public. For example, in New Orleans, a U.S. Department of Justice (“DOJ”) investigation found “officers use force against individuals, including persons in handcuffs, in circumstances that appeared not only unnecessary but deliberately retaliatory.”8 In Baltimore, the DOJ determined that BPD officers used “unreasonable force against people who are already restrained,”9 and those who were running away from officers,10 neither of whom presented any threat to officers or the public. In both cities, officers were found to have engaged in a pattern or practice of excessive force under the U.S. Constitution, these patterns also violate international human rights principles. 2 This summer, the deaths of Breonna Taylor and George Floyd are among the latest in a long, uninterrupted history of police killings that sparked nationwide protests against police violence and systemic racism.11 In response to these peaceful protests, law enforcement agencies, including federal law enforcement agencies,12 responded by using excessive force against protesters in cities nationwide. On May 31, 2020, officers from the Philadelphia Police Department (PPD) arrived en masse in armored vehicles, in response to limited reports of isolated looting, and without provocation repeatedly unleashed a variety of dangerous military style munitions launching tear gas and firing rubber bullets at residents and passersby sitting on their porches and walking home from work.13 Some residents were forced to evacuate their homes due to tear gas used by police which entered their homes.14 The PPD targeted a predominantly Black neighborhood for this treatment even though predominantly white neighborhoods also experienced alleged looting.15 Similarly, in response to protests calling for an end to police brutality and systemic racism in Louisville, Kentucky, and justice for Breonna Taylor,16 Louisville police officers used tear gas, flash bangs, pepper balls, and other forms of military-grade technology against demonstrators.17 This combat-style response led to yet another senseless death: on May 31, 2020, when Louisville police and the National Guard fired eighteen live rounds at David McAtee, a local Black restaurant owner, killing him, after he appeared to point a gun at officers to protect protestors seeking shelter in his restaurant from police violence.18 Since then, countless peaceful protesters—including elected officials and local educators—have been shot, gassed, beaten, and arrested solely for making their voices heard.19 Louisville police officers also abused the city’s curfew order while it was in effect, employing force to arrest or disperse people hours before the curfew order required them to clear the streets.20 LDF filed lawsuits, on behalf of protesters, against the Louisville Metro Police Department (“LMPD”) and Philadelphia Police Department for their use of military-style weapons in violation of the protesters’ constitutional rights. LDF’s lawsuit on behalf of protesters alleges violations of the U.S. Constitution’s First Amendment for retaliation against protestors exercising their rights of speech and assembly, Fourth Amendment for unwarranted seizures and excessive force, and Fourteenth Amendment for discriminatory conduct. These suits remain pending. To stem this tide of excessive force, the United States Congress must pass a national use of force standard that is more stringent than the constitutional standard and allows officers to use force only as a last resort. II. The Infiltration of White Supremacists into Law Enforcement Organizations, and the Tacit Support of Racist Militia Groups by Law Enforcement Raises Grave Concerns. Federal and state governments have failed to address documented evidence that the Federal Bureau of Investigation found in a 2006 report showing persons associated with white supremacists groups infiltrating or otherwise influencing law enforcement agencies across the country. Law enforcement agencies have also tacitly supported unauthorized militias, who often 3 hold white supremacist views, and present a threat to Black communities. For example, this summer Jacob Blake, a 29 year-old Black man, was shot at close range by an officer in Kenosha, Wisconsin. The community was understandably outraged
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