Say His Name: Colin Kaepernick

kneeling

By Sabrina Fani

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The worldwide unrest and plea for racial justice following the death of George Floyd has prompted several organizations to reevaluate past actions. Amongst them, the National Football League took accountability for ignoring its players who have protested police violence and racial inequality this past Friday. In a short video statement posted to the League’s Twitter account, NFL Commissioner Roger Goodell apologized to players for “not listening” to their concerns surrounding racism.

 

“We, the National Football League, condemn racism and the systematic oppression of black people. We, the National Football League, admit we were wrong for not listening to NFL players earlier and encourage all to speak out and peacefully protest. We, the National Football League, believe black lives matter. I personally protest with you and want to be part of the much-needed change in this country.”

 

The video came in response to several of the League’s players calling on the NFL to listen to their concerns. In a video posted to the NFL’s Twitter page, a group of NFL players, including Deshaun Watson, DeAndre Hopkins and Tyrann Mathieu, questioned “How many times do we need to ask you to listen to your players? What will it take? For one of us to be murdered by police brutality?”

 

kneeling

The NFL’s apology was not received without criticism. Notably, the apology dances around directly addressing Colin Kaepernick, the former San Francisco 49ers quarterback who sparked a nationwide movement in 2016 when he began kneeling during the national anthem to protest police brutality. At the time, his actions were met with both praise and criticism. On one hand, he was praised for his bravery. On the other, he was criticized for allegedly disrespecting the United States and the armed forces of the country.

 

As a result of events following his controversial actions, he opted out of his contract with the 49ers and has been a free agent since 2017. According to reports, the 49ers had told Kaepernick that he would be released by the franchise. Since then, his chances of returning to the NFL have been far from promising as many teams saw him as too controversial, and therefore, bad for business.

 

Despite his departure from the NFL, Kaepernick “has remained a voice of protest” and a “reflection of the social consciences of his generation of athletes.” The recent protests in light of George Floyd’s death have put Kaepernick back into the spotlight as a leading figure for racial equality and the end of police brutality.

 

Critics of the NFL’s apology saw Goodell’s video as nothing more than a self-interested publicity stunt. Others claimed they would only accept the apology once Kaepernick is signed back into the League. Ultimately, the apology falls flat until followed by action. Many have called for such action to be in the form of the League acknowledging Colin Kaepernick’s name and directly addressing the NFL’s mistreatment of the kneeling controversy. Many view Kaepernick as part of the solution and demand his re-entry into the League “to help him regain what he lost by standing up for what he believed in.”

Video link: https://twitter.com/NFL/status/1269034074552721408

Video link: https://twitter.com/NFL/status/1269026096034398208

https://www.forbes.com/sites/sethcohen/2020/06/06/profit-over-prophet-the-nfls-apology-is-meaningless-until-colin-kaepernick-returns/#4585480b1e28

https://www.forbes.com/sites/sethcohen/2020/06/06/profit-over-prophet-the-nfls-apology-is-meaningless-until-colin-kaepernick-returns/#4585480b1e28

 

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Sabrina Fani is a second year student at Loyola Law School concentrating in Business and Entertainment Law.

An Effort to End Qualified Immunity

policebrutality

By John Latson

policebrutalityWith democracies around the world protesting police brutality, various aspects of law enforcement are under strict scrutiny. One aspect of law enforcement being scrutinized in the United States is the legal doctrine of “qualified immunity”.[1] Under this doctrine, government officials are strongly protected by the law from allegations that they violated a plaintiff’s rights.[2] Responding to calls around the nation for changes to law enforcement, current and former athletes from the NFL, NBA, and MLB recently banded together to put an end to qualified immunity.

No legislative body has ever enacted a law to rightfully establish qualified immunity; the law exists because judges created it.[3] Beginning in 1967, the Supreme Court of the United States created an exception for government officials who made mistakes in “good faith” or which didn’t violate “clearly established” rights.[4] The Court reaffirmed qualified immunity in the 80s, ultimately preventing victims of police brutality from pursuing their claims.[5] Even over the last fifteen years, federal appeals courts have increasingly granted qualified immunity to police officers accused of the use of excessive force.[6] However, the tide appears to be turning against qualified immunity.

The most conservative Supreme Court Justice, Clarence Thomas, and the most liberal Supreme Court Justice, Sonia Sotomayor, have both indicated a dissatisfaction with qualified immunity.[7] Sotomayor argued in 2018 that the legal doctrine tells police “they can shoot first and think later.”[8] With the legislature acting slowly, athletes and the sports industry are responding in their own way.

 

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In 2017, Anquan Boldin and Malcolm Jenkins founded the Player’s Coalition, a coalition dedicated to the “collective goal of making an impact on social justice and racial equality at the federal, state, and local levels through advocacy, awareness, education, and allocation of resources.”[9] In support of abolishing qualified immunity, Player’s Coalition reached out to the NFL, NBA, and MLB and obtained over 1,400 signatures on a letter to Congress from current and former athletes and coaches; urging Congress to support legislation which will end qualified immunity, calling qualified immunity an “unchecked authority of the police.”[10] The letter reminded Congress that “[a] legal system that does not provide [recourse for police brutality] is an illegitimate one.”[11]

The letter from the Player’s Coalition requested lawmakers support legislation that would remove qualified immunity from law enforcement officials, and allow citizens to seek relief when a police officer or other government official violates an individual’s legal or constitutional rights.[12] It further acts as a reminder of the grief Americans feel because the government has failed to protect them; and instead protects those who cause them harm.[13] Still, it’s unclear what effect eliminating or curtailing qualified immunity would have on the country.

One possible benefit of curtailing qualified immunity may be the strong incentive counties will have to train, supervise, and discipline their officers.[14] Under modern law, counties may be held directly liable for instances of constitutional violations by police, but a county is likely to escape liability unless a plaintiff can show that the officer violated his or her constitutional rights as part of an established practice or policy.[15] By curtailing qualified immunity, local governments will be more susceptible to lawsuits, so there is more incentive to supervise all officers.

Eliminating qualified immunity may also lead to new types of policing. Suggested methods include: civilian review boards, community policing, bail reform, or demilitarization of police tactics.[16] For example, community policing would require all members of a community to become active members and allies to enhance the safety and quality of neighborhoods.[17] Such a system would move community members to hold each other accountable, allow community members to voice their concerns, contribute advice, and take action they decide is appropriate.[18] Keeping the community responsible for its own policing may stem instances of racial injustice.

However, proponents of qualified immunity fear that curtailing qualified immunity will actually lead to more violations of constitutional rights.[19] There is the possibility that with nothing left to protect police officers from liability, judges will construe constitutional rights violations as acceptable and constitutional conduct.[20]

In conclusion, the Player’s Coalition recently obtained 1,400 signatures on a letter from current and former players and coaches from the NFL, NBA, and MLB. The signatures are part of a push towards eliminating or curtailing the decades-old legal doctrine of qualified immunity. Although police reform may be difficult, with protests around the United States and the world, it’s time. As the Player’s Coalition letter states, “[t]he time for debate about the unchecked authority of police is over; it is now time for change.”[21]

 

[1] https://chicago.suntimes.com/columnists/2020/6/9/21285663/police-abuse-qualified-immunity-supreme-court-rulings-jacob-sullum

[2] https://www.law.cornell.edu/wex/qualified_immunity

[3] https://chicago.suntimes.com/columnists/2020/6/9/21285663/police-abuse-qualified-immunity-supreme-court-rulings-jacob-sullum

[4] Id.

[5] Id.

[6] https://www.motherjones.com/crime-justice/2020/06/qualified-immunity-police-congress-supreme-court/

[7] Id.

[8] Id.

[9] https://players-coalition.org/about/#about

[10] https://thehill.com/blogs/blog-briefing-room/news/502154-over-1400-pro-athletes-coaches-call-on-congress-to-back-bill

[11] Id.

[12] Id.

[13] https://www.cnn.com/2020/06/10/politics/qualified-immunity-congress-athletes-brady-wentz-brees/index.html

[14] https://verdict.justia.com/2020/06/10/would-eliminating-qualified-immunity-substantially-deter-police-misconduct

[15] Id.

[16] Id.

[17] https://www.ncjrs.gov/pdffiles/commp.pdf

[18] Id.

[19] https://verdict.justia.com/2020/06/10/would-eliminating-qualified-immunity-substantially-deter-police-misconduct

[20] Id.

[21] https://www.cnn.com/2020/06/10/politics/qualified-immunity-congress-athletes-brady-wentz-brees/index.html

 

optimized_johnresizedJohn Latson is a second-year law student at Pepperdine University Caruso School of Law, Treasurer for the Student Body Association, and Treasurer for Pepperdine’s Sports and Entertainment Law Society.