Police Reform in the Biden Administration

tell us a little bit about the Act. Well, the Act is about several things UM. One in particular is racial profiling and UM. It specifies measures to eliminate racially policing, particularly racially racial profiling UM and sets forth the standard of UH disparate impact on particular populations minority populations UM as the measure of looking in to see whether jurisdiction is violating the prohibition on profiling UM. I think, though, the most important things to me are the police misconduct

measures UM. Profiling is a form of misconduct with the but the measures to try and UM identify officers who are repeat offenders. With respect to who misconduct or excessive force or perhaps lethal force, the creation of a registry to monitor misconduct across the country, the de certification procedures, which I think are extremely important to stop officers from pinging around from one department to the other after they get in trouble. Um data collections really is built in,

and it's quite important. We have very little in the way of national data on the kinds of issues that are the target of the George Floyd Act again, excessive force, racial profiling, repeat this conduct, and z on. So I think it's a very wide ranging act. I think it at least at the federal level, it should have some impacts. Now most of the issues that that they try and get at are actually state in the city level issues

are local municipalities. So um, at the very least, it sets this this lights of path I think for a fairly uniform response across the US with respect to improving policing and reducing UH policing equities and the police misconduct and ensure your accountability of police to both citizens into their local governments. How does the Act handle racial profiling? Because isn't sometimes racial profiling something that goes on in the officer's head well, you know, it's at the individual level.

It's you could say that, yeah, it doesn't go on in the officer's head. He could perceive where she could perceive that a particularly individual is dangerous or up to some kind of criminal activity. That's based on perception, and those perceptions can be biased, and I think that's one of the issues that they try and get at UM.

I think though, when you think about UM, the way the language is set forth in UM Section three one two of the Act, they talk about really a pattern, and they talk about activities of law enforcement agents and a jurisdiction that have had a disparate impact on individuals with a particular characteristic, and the characteristic is a racial

razor gender, but particularly recent ethnicity. So implicitly they're arguing for a pattern and practice model, which means some kind of statistical analysis overall of the actions of police officers with respect to the citizens. Now I've done that. I was participately in the David Floyd trial in New York on stopping frisk um, and I've been involved in other UM racial selective we call selective enforcement cases. And it's

hard to prove. There's two issues here. One is disparate impact, which is a different standard than for example, selective enforcement or disparate treatment. And I think there'll be a little bit of m conscientiousness in when there are efforts to prove disparate impact. It's proven to be in the empirical literature by police scholars to be kind of hard to

pin down. It's one of those things where I think everybody knows it's there, but to to say it and to find that race UH, net of all other factors is driving the patterns that are observed, that's tricky. We all may be may sense it. It may be the only logical explanation. I think that was one of the conclusions we reached in New York. Apart from the statistical conclusion. We said, well, if it's not race, what else could

it be? And I think that the access to the standard that UH will lead to some contentious um fights once we get to litigation and allegations of violation to the Act. Having said all that, I think that the acts of a baseline that would lead to I think rigorous and and and sweeping empirical research to show and identify the patterns and local jurisdictions as well as across the federal agencies mentioned sort of tracking police officers to see if they repeat conduct. I don't think they they

I don't think they Act specifies tracking particular officers. I think the Act specifies recording incidents of misconduct by officers, and then jurisdictions can identify within the data which officers are engaging in misconduct repeatedly and which officers may only be doing it incidentally, and then ideally the data collection system, the archive, would be able to look at the responses to those by particular departments to see if they're being

held accountable. I don't think it's a system to register all police and follow their their uh their behavior over time and record their misconduct. I think it's an incident based system to look at particular incidents to see if there are patterns in there. So my question is don't police departments across the country already keep track of those officers.

It's wildly uneven um and for for several reasons. One is just simply the preference of the police departments to invest their resources in keeping track of officer misconduct to a lot of misconduct depends on reporting by civilians to either directly that the police are to a civilian oversight board, and um uh, some civilians may not want to report.

I think there's a legitimate fear of retaliation by police officers if somebody reports an officer for having engaged in excessive forests or or abusive language, or false arrested and things like that. So, um, there's a good interesting example in Chicago. The police department in Chicago does receive complaints. They record a fairly large volume of complaints. But there's also a private organization called the Invisible Institute, and they

received complaints as well. And the private organization Invisible Institute, they received nearly twice as many complaints by civilians about misconduct by the Chicago Police as do the Chicago Police. So I think that tells us something about the sensitivity of these archives to willingness of citizens to report to an agency that they may have some distrust towards. When you look at news articles on this act, the first

thing you see is that it bans all chokeholds. Are there still police stations around the country where choke holds are allowed. There's a few they allow chokeholds under particular circumstances what they call exiting circumstances, but for the most part they're banned. Now the bands um are of question

will affectiveness and UM. If an officer violated the ban in a particular department, whether that officer is sanctioned for violating the band depends very much on the discipline systems in place in that department, and often the departments will look at the particular circumstances in which the officer used the chokehold and decide, well, perhaps that officer really didn't have a choice. Now, that's hard to prove one more or the other, um, but in general I think officers

do have a choice. There are many ways to simping with aspect other than risking their life by cutting off their oxygen supply. So um, it's it's a The ban is is well stated. I think it has strong expressive value to condemn a particular police tactic. Um. Its enforceability will vary from place to place, depending on the the urgency that police leadership feels towards this and their willingness

to make their officers angry by curtailing their activities. So there's again, many of these provisions are complicated by the realities of policing, but they're all pointing in the right direction to increase accountability. Does the Act just stop all no knock warrants? I believe the intent is to ban all no knock warrants. Are there certain instances where no knock warrant is needed? You know, it's an interesting question, and I think, well, let's put it this way. It

does band no knock warrants. I would guess that that somewhere uh north of se perhaps closer to eight of warrants can be served without a no knock provision. Um, it's possible that it could be as high as as as ninety five or ninety eight or UM. We don't have enough research on this question to answer um your question and the criticisms of police that you do need to keep that possibility. And again it's one of the

things that that has strong expressive value. But UM, I think we need This is an area where we really need some research to say to say just how far should the band go so qualified immunity just explain what

qualified immunity is and what this bill would provide. According to the Act, very little of it will survive as any qualified immunity essentially is UM relieves officers of liability for having engaged in um misconduct as simple as that, if they engage in excessive force, if they engage in false arrest, if they engage in some kind of racial profiling for example, that leads to some harm when an officer is found, When an officer is found who have

violated the law, whether civil or criminal, they are quality the qualified and meanoring and provisions reliefs of any responsibility for the acts that they took, that they engaged in, and that includes relief of monetary damages and in some instances relief from criminal prosecution. So this would eliminate qualified immunity, that's right, It would hold officers feet to the fire. This is a federal federal bill, so I mean, how

much of this will be enforceable at the state level. Well, this is an interesting question because some states have their own statutes and qualified immunity and there didn't UM. Not surprisingly, a number of court cases on qualified immunity in the last couple of years, and there's a very very strong, well thought out appellate court opinions on this with respect to the actions of individual officers. But but there most of those cases involve allegations of violations of federal law.

If there's a case which involves violation of state law, that's going to lead to a different um possibly different uh standard in the courts to determine where they're qualified immunity applies. It depends on how the state statutes wriated. But there is federal case law that that's that sustains qualified immunity depending on the depending on the statute in the circumstances. To give an example, you know, we don't we don't really know the parameter that the courts haven't

really settled on the parameters of it. There was just a case in um I believe was in Texas of a negligent correctional officer who allowed a person to suffer illness um and um some beatings at the hands of garden inmates um in well confined, and the courts, the lower courts there's um found um the officer gave the officer to qualified immunity for any damages. The appellate court didn't and um uh they were going to They essentially

they said there are limits to qualified immunity. And it was an interesting opinion in the courts, but it did say that you know, there are boundaries on it. The boundaries are a little bit porous, and the boundaries are really hard to see as a clear um categorical line, but there are boundaries on it. But for the most part, I think this is going to make it much more difficult for officers to claim qualified immunity for the courts they granted to them and as far as the rest

of the act. So if it passes, it would be against federal law to let's say, use a choke cold, so the officer would have to be charged in the federal court. That would put the federal government in in the position of doing a lot of policing of the police. Well I do would now, I mean the Department of Justice has mechanisms by which they can order police departments, um, following a civil rights investigation to undertake particular activities to

remedy acts of civil rights violations. Music call consent degrees. In there, they were dormant for the most part unto the Trunk administration. They were fairly common um under the Obama administration. Um less so under the Bush administration, but but probably more so than any other administration during the Obama years. And I'm quite sure that given the nominees for UM Civil Rights Division, Department of Justice, this this

activity will be revived. So I think there is a mechanism that is going to be reinvigorated, strengthened in the Justice Department to pursue these kinds of investigations. So, yes, there is some elements, there's some aspects of of federal oversecon police departments, and they will be I think expanded somewhat under these They would be expanded with or without

the George Floyd Act, make me clear about that. But the George Flight Act gives kind of a foundation and a sort of a normative or political political rationale to more aggressively overseeing the police activity. A version of the bill passed the House last year along partisan lines, but it went nowhere in the Senate, which was then controlled by Republicans. What do you think it's chances are in

the Senate this time around. Well, I think we can probably count noses in this case, and I my guess is that for the most part, there may be some tinkering with the act in the Senate version of the Act, and that tinkering would be around the margins of police accountability, and it might lead to some concessions by some Democratic senators.

I can imagine Senator Mansion, for example, coming from a more conservative state, perhaps Senator Cinema from from Arizona me from a more conservative state, having a few qualms about certain provisions of the bill. So there might be some figuring around the markets. But I think the main thrust of the legislation will pass. Now that's a prediction, and I'm very bad. I'm a very bad gambler. We appreciate the prediction anyway, Thanks so much for being on the show.

That's Professor Jeffrey Fagan of Columbia Law School. A federal judge in Texas extended in order blocking President Joe Biden's plan to hall deportations of undocumented immigrants for one hundred days. Federal Judge Drew Tipton, a Trump appointee, granted Texas's motion for an injunction blocking the plan freeze on removals until the case is resolved, which could take months or even years. Joining me is Leon Fresco, a partner at Hollandon Knight. Leon the judge road a one five page order. What

was his reasoning here? Well, in the end, what this judge was saying, is that, just like other programmatic changes that have occurred that have been enjoyed by the courts, that here this memo that was then by the Biden administration that was specifically instructing I not to engage in certain removal operations in order to remove people from the United States was a programmatic change that needed to occur to the notice and comment process, and so violated the

I and A. And also that it violated different agreements that have been in place with different states about how the enforcement of immigration law could occur, and also violated the requirements that the president actually enforced the laws. And so with all of those results, the court enjoined this memorandum, which actually has some cookie results, but in the end just says that this memorandum itself can actually be enforced. So not going through the comment procedures is something that

was often used against the Trump administration. So is this judge using the same kind of reasoning here? The doctor in itself upon which the decision was based upon is the typical doctor that you would use to overturn one of these prigot edge of the memorandum. The key here, however, is that in the end, this is a memorandum about how the president is going to enforce immigration law. And so even if this particular memo is stricken, it doesn't really change the fact that on a case by case basis,

ICE can't be forced to deport specific people. There's no lawsuits that anybody is going to be able to file. It's going to say you must import every single person you encounter. That's the president's discretion. That's literally in the statutes that nobody can do to take away that discretion.

And so all this does is just eliminate the memo as a basis for governing how this ICE discretionary process works, which is why the Biden administrations of siquickly issued another memo had said if you're going to engage in operations against people other than serious criminals, you have to get many layers of approval, which basically procedurally accomplishes the same objective as saying don't remove people. The Texas A g was tweeting victory, etcetera. So the victory maybe the legal victory,

but on the ground it doesn't make that much difference. Correct, It's a victory in paper only, but not in substance. Because the paper itself, the memo itself is gone, so that no one can site to that memo as a

basis for why a removal shouldn't occur. But if an ICE agent has to go through many layers of review in order to engage in an ICE operation, what will inevitably occur is that those context that the memo does permit or doesn't permit for removal will be inculcated in the agency such that whatever somebody tries to go through those layers of review, they will be told this is not an acceptable operation for a removal and that goal

will have been accomplished in the same manner. So that may be the reason why the Biden administration hasn't said that they're going to appeal this decision to the Fifth Circuit. Right in the end, it's really much to do about nothing, because if you are organizing a prosecutorial discretion regime, that regime can be done without needing a memo like this.

The point of what memo was because on day one of the Biden administration, you needed a very broad memo like that which essentially said don't support anyone because there was no one there at these agencies. Yet he inculcate the officers about what the new enforcement priorities were. Now, people are slowly being installed. Alle Majorchis has been confirmed

as the DHS secretary. There are political appointments that are moving into these agencies that do not require cetic conformation, and those individuals can begin to say to the people, and I here are our priorities, and so you should not approve a removal as this or this or this, and that doesn't need a memo that says don't enforce the immigration law, which was sort of the day one memo just to stop any removals that were imminent at

that time. And the judges opinion didn't touch on the agreement that the Trump administration made with Texas and some other states. Well, in the end, the agreements were not necessary to invalidate this decision because what was ultimately necessary was just this issue that this was a programmatic change that needed to go through the formal rulemaking process, that

it was going to be implemented. And they don't in the end half standings to say that the federal government should deport at person that just is not a thing in the US law. And so from that perspective, that wasn't something that was going to be able to survive the Fifth Circuit or Supreme Court review. And so that's why I think you don't see the imphasis there. Lean you said that the judge's action will have some cookie results.

Tell us about them. There results in some very unique consequences, which is just that this memo itself can't be imforced. So you can't say to people, don't deport anyone they

on the basis of this memo. But there's nothing about this case being victorious for the State of Texas that is likely to lead to even a single additional person being removed or maintained, because the processes that the agency has put in place now have made it clear that here are the kinds of approval you need in order to begin a removal action or to finalize the removal action, and when those approve sources are procured, you're not going to get that approval unless it's a serious criminal or

national security case. Let's turn to what's happening now. Because there are ports that there have been thousands of unaccompanied miners coming through the border. Border patrol agents are apprehending an average of more than two hundred children crossing the border without a parent every day, but nearly all beds for immigrant children maintained by the Department of Health and Human Services are full. So what's happening at the border. So there are multiple issues that are happening at the

southern border. One is with regard to asylum speakers, and one is with regard to unaccompanied children. So for unaccompanied children, the Trump administration, at the final days of the Trump administration have actually won a decision that said that what's called Title forty two of the Code, which is the code having to do with the CDC and disease exclusion, permitted the Trump administration to exclude young people on a companied miners from the United States because of COVID and

the COVID crisis. The Biden administration decided that it would not use this COVID authority to exclude on a company miners and would instead process on accompany miners the way they had traditionally been processed under the Flora Settlement Agreement, which is that an unaccompanied minor gets to come into the United States and make a claim for either asylum relief or trafficking relief or what is called special immigrants

juvenile static. The complication is that when on a company miner comes into the United States, they need to be housed in a shelter that is run by the Office of Refugee Resettlement until the Office of Refugee Resettlement can determine that the adult that something to pick up that minor isn't some human trafficker or smuggler or terrible individual,

but it is instead a committed scare stags. And so the facilities that are usually over expended for this purpose here not only are overexpended, but haves to be out

about capacity due to the COVID prices. And so this is why you're seeing all of these new facilities opening up, including this one in Carrizo Springs, Texas, is because they're gonna need to be increased capacity if the unaccompanied miners are actually going to be allowed into the United States as opposed to be excluded using the CDC COVID Exclusion Authority. So are more people coming in since since Biden has

been president, So the numbers are on an uptick. They're not yet at the crisis levels that we've seen in the past, but there is some concerns that the Department of home brand security of citing that those numbers by May or June could get up to those levels. And the question is, if they get up to those levels, will the Biden administration change course and use this title forty to afford ready again to exclude people from the United States. That's going to be very interesting to see.

And the other change that was made was ending what is known as the Remain in Mexico or the Migrant Protection Protocol program, which was a program that required anybody seeking asylum too entertain their claims from Mexico and not from inside the United States. The Biden administration has said that people, not new people, but people who were previously waiting in line, can come in on a controlled basis of a few hundred people per day to come in

and make their claims from inside the United States. And so the worry is that if enough people misinterpret that action, meaning they think it does apply to the people or it will apply to new people, that more people will try to come in through the border. Are people coming in now? Are they going through an immigration hearing and then released until what you know used to be called catch and release and then released until a court day.

How is it being done. Well. What's happening is the queue that had been created for this migration Protection Protocol of several thousand individuals waiting for hearings inside of Mexico instead of inside the United States. They're going through that queue and they're assessing who has serious, legitimate claims, and a few hundreds of those individuals are being led into

the United States. They're being quarantined for a specific period of time and facility that are being implemented for this quarantine, and then yes, they are being released into the United States to make their claim. And so this is why you see the protestations from former President Trump about this, because he did not want them to occur. And the Biden administration said, but the humanitarian nightmare that was happening on the Mexican border cannot be justified under asylum law principles.

And so this is why this needed to be accomplished. And so you just have two completely different philosophies on this issue of processing a sylum speakers on the border. The immigration bill that's been proposed in the House is that Biden's immigration bill. Does that have what Biden wants

in it? Correct? That was the bill that by then actually wrote with the administration and consultation with Senator Menendez and and congress Women Linda Fanja in the Senator in the House, respectively, and that bill is what I would say. There are two parts to the usual comprehensive bill. There's the bill that fixes the legal immigration system and provides benefits for people here without status, and that's usually coupled with significant increases in enforcement to prevent future waves of

illegal immigration. And so this package only has the first part of it. It doesn't have the second part of it. Because the idea is, well, if Republicans want to negotiate, then they can. They can say what they want the second part of this bill to be, but that strategically wouldn't make sense for Democrats to insert whatever language they think is good on it, for given that whatever they

do may not be deemed acceptable to Republicans anyway. So the idea is, you get what the Democrats want in the bill out there, and you see if there are Republicans who are willing to engage and say I will accept this and you give me these changes. The focus has been on the dreamers, what's their path under this immigration bill? Well, I think you'll see in the middle of mark the House vote on a number of provisions.

They'll see if they can vote on this bigger bill, but the laws of vote on a bill for Dreamers, on a bill for people who have been here for decades with temporary prospective status to give them lawful permanent residents, and a bill to help farm workers who have been here for several years with our documented status to give them legal status as well. And then that will shift over to that is going to lead a process to determine are their ten Republicans who will agree to any

immigration changes for anybody for any reason. And that's gonna be where the action really is is what can you get Republican senators to vote for an immigration if there's anything. Trump had several immigration cases before the court. Have all those cases been taken off the track by Biden's administration

or not? Yes, Almost the vast majority of those cases have either been staved or have been dismissed, such as the border wall case and the public charge case, because those cases are you know, the Trump of the Biden administration is saying they're taking a different direction than the one that the people in the lawsuit were suing about. For that, there would be no need for the Supreme

Courts to come in. There is one case of very interesting about whether people on temporary protective status can actually get green cards, where it looks like that case will go forward and the Biden administrator may adopt these same decision that the Trump administrations have adopted that people on semporary protective status shouldn't be able to get green cards. But we'll wait and we'll see on that one. Thanks

for being on the show. Leon, that's Leon Fresco, a partner at Hollanden Night And that's it for the edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, or at www dot bloomberg dot com slash podcast Slash Law. I'm Judent Grosso. Thanks so much for listening, and please tune into The Bloomberg Law Show every weeknight at ten pm Eastern right here on Bloomberg Radio.