VETO H.B. 838: “Anti-Black Lives Matter” Bill

Georgia has repeatedly and systemically ignored the abusive conduct of its law enforcement officers against Black people, resulting in an epidemic of murders by police such as those of: Anthony Hill, an air force veteran killed unarmed and naked; Jimmy Atchison, who was surrendering after hiding in a closet; Jamarion Robinson, who was mentally ill and was shot 59 times; and Alexia Christian, whose death has gone without a proper and transparent investigation since 2015.1

In the wake of a global uprising where communities of color are demanding justice and accountability for ongoing police brutality, the Georgia Legislature passed HB 838 which further empowers and emboldens law enforcement to engage in violent behaviors and, in effect, seeks to suppress the voices of those calling for justice. H.B. 838 will: 1) Allow police officers to sue community members for violating police officers’ “civil rights” or for filing any complaint they find to be false. 2) Create a stand-alone criminal charge where community members could face up to five years in prison or face a $5,000 fine for any harm experienced by a police officer or for damage to their property because the individual is a police officer.

HB 838 was sponsored by Representatives Bill Hitchens, Jodi Lott, Rick Jasperse, Micah Gravley, Eddie Lumsden and Senator John Albers. This bill was specifically designed to provide needless protections to police officers by shifting the conversations from the global call for police accountability and justice for victims of police violence to the “rights” of police officers. Representative Hitchens defended the bill by diminishing the concerns of people who seek accountability from the police, stating that people would lie in complaints against police officers, that police officers are in constant danger from their communities, and that most protests against police officers are because “nobody likes getting a citation.”2 The bill passed both chambers, 33-20 in the Senate and 92-74 in the House.

While the Georgia legislature should be responding to public outcry with bills that hold officers accountable for assaulting or shooting community members, it instead passed legislation that forces increased and uneven civil and criminal liability onto community members for protesting police abuse. In passing H.B. 838 in the midst of calls for police accountability and for justice for Black lives, the Georgia legislature continues and even amplifies this trend of willful, malicious, and racist behavior.

1 Other victims include Rayshard Brooks, Deaundre Phillips, Kathryn Johnston, Oscar Cain Jr, and countless others. 2 https://livestream.com/accounts/25225474/events/8824297/videos/207824164 at 3:05.

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Policy Implications

1) Enables Police Officers to Bring Civil Lawsuits Against Community. H.B. 838 would allow police officers to bring civil lawsuits against people, organizations, or corporations for any damage suffered while the officer was on duty, for any “abridgement of the officer’s civil rights” suffered while the officer was on duty, or for filing a complaint against an officer which the person, organization, or corporation knew was false at the time of filing.3 A) Overly broad and vague. • “Abridgement” of officers’ civil rights is not defined which creates legal ambiguity.

B) Creates more protections and immunity for police officers by disincentivizing community members from filing valid complaints against officers for fear of civil liability.

C) Leaves room for law enforcement to bring civil lawsuits against community members when complaints filed by a community member against an officer do not result in disciplinary action against the officer.

D) No similar protections exist for community members to hold law enforcement accountable due to a legal concept called “Qualified Immunity.” • Qualified immunity protects police officers from liability in a wide variety of circumstances4 including: police officers tasing someone to death5 or police unleashing a dog on a man sitting with his hands raised.6 In just over 50% of cases where a police officer defends against a lawsuit using Qualified Immunity, the judge rules in favor of the police officer upon the first look.7 On appeal, judges rule in favor of the police officer in another 20% of the remaining cases.8 When a Qualified Immunity defense is raised, there is a significant chance that a court will accept the defense, leaving the injured party with no path to justice. • Allows police officers to sue community members for minor incidents, including minor emotional harm or reputational harm, even though Qualified Immunity prevents

3 http://www.legis.ga.gov/Legislation/20192020/194429.pdf. 4 https://www.law.cornell.edu/wex/qualified_immunity. 5 Wilson v. City of Lafayette, 510 F. App’x 775 (10th Cir. 2013). 6 https://www.politico.com/news/2020/06/15/supreme-court-qualified-immunity-police-cases-320187. 7 https://www.yalelawjournal.org/pdf/Schwartz_1ki1sac4.pdf. 8 Id. 9 GAMMON AVENUE • ATLANTA, GEORGIA 30315 • (404) 622-0602 OFFICE • (404) 622-4137 FAX www.projectsouth.org

community members from suing police for major incidents of police misconduct or abuse.

2) Creates Grounds For “Bias Motivated Intimidation” Against Police Officers. “Bias motivated intimidation” is defined as maliciously and with the specific intent to intimidate, harass, or terrorize someone by causing death, “serious bodily harm,” or damage to property worth over $500 because of the individual’s “perceived employment as a first responder.”9 This offense would result in 1- 5 years of a prison sentence and/or up to a $5000 fine.10 The sentence for this offense would have to run consecutively to the sentences for any other offense of which somebody had been convicted.11 A) Overly broad. • For example, a community member could serve up to five years in prison for painting “Black Lives Matter” on a police officer’s car if the court finds the behavior caused over $500 in property damage and was maliciously motivated by the fact that the individual was a police officer. • A court may also find “specific, malicious intent” in actions, such as during a protest or police altercation with community members, undertaken against a police officer in responding to police officers' abusive and violent actions.12 • This bill would include criminalizing actions taken against on and off-duty police officers or individuals who are perceived to be police officers.

B) Criminalizes actions undertaken during protests against police violence. • Being accused of destroying a police officer’s property during a protest of police killings or abuse, defending yourself against a police officer who is attacking, and a wide variety of other responses to something that a police officer may initiate could be interpreted as attacking that officer “because of [their] perceived employment as a first responder.” Any of these actions could then lead to a five-year prison sentence, even if there would normally be no prison sentence involved.

C) More likely to negatively impact Black and Brown communities. • Charges like this are more likely to be brought against Black and brown individuals, due to already existing bias in policing and prosecuting.13

9 http://www.legis.ga.gov/Legislation/20192020/194429.pdf. 10 Id. 11 Id. 12 Examples of exaggerated charges and sentencing threats have sprung up as police and prosecutors have responded to protests; in New York City, two lawyers face life sentences for property destruction. https://www.cnn.com/2020/06/17/us/brooklyn-molotov-lawyers- protests/index.html. 13 https://www.law.nyu.edu/sites/default/files/upload_documents/Prejudice_Policing_Public%20Safety.pdf.

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• Once charges are brought in any criminal case, Black individuals are more likely to be convicted than white individuals.14

D) Similar laws protecting the police already exist. • There are already statutes adding to a sentence if a law enforcement officer is assaulted (for example, Aggravated Assault with a Firearm against law enforcement carries a ten- year mandatory minimum, whereas Aggravated Assault with a Firearm generally carries a one-year minimum; similar disparities exist in other assault and battery statutes),15 and other actions taken against first responders.16 H.B. 838 is specifically designed to increase sentences and add charges to punish community members for speaking out against police violence.

E) Further expands the prison industrial complex. • If an individual has a five-year sentence for one action and is convicted of “bias motivated intimidation,” the individual can get an additional one to five years added to their sentence. • Longer possible sentences and a greater list of acceptable charges will encourage plea bargaining from prosecutors that is more coercive, increasing the number of people who end up pleading guilty and gaining a criminal record and/or prison time.17 • Longer lists of possible charges give prosecutors and police officers more power to abuse their discretion.18 More specifically, prosecutors are more likely to charge people of color with offenses that carry longer sentences than the crimes they charge white people with.19

14 https://www.sentencingproject.org/publications/un-report-on-racial-disparities/ and https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwi5puG3kZvqAhUNAp0JHe_X DTQQFjAGegQIBRAB&url=https%3A%2F%2Fwww.law.upenn.edu%2Flive%2Ffiles%2F6792-examining-racial-disparities-may-2017- summary&usg=AOvVaw3hOu1EY6xr_KUa-7FUCJZm. 15 https://www.acluga.org/sites/default/files/field_documents/comparison_table_of_additional_protections-for_law_enforcement.pdf. 16 See, e.g., O.C.G.A. § 16-5-21(k). 17 https://www.aclu.org/news/criminal-law-reform/coercive-plea-bargaining-has-poisoned-the-criminal-justice-system-its-time-to-suck-the- venom-out/. 18 https://www.economist.com/leaders/2017/11/09/plea-bargains-save-time-and-money-but-are-too-easily-abused. 19 https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.

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