The Race to Find Justice
On June 9, 2020, Chief Judge Mary Ellen Barbera of the Maryland Court of Appeals issued a Statement on Equal Justice under Law. The poignant statement was issued in the midst of the protests that spread like wildfire across the nation, emboldening individuals to stand up and be heard about the racial injustices that have been plaguing communities of color for centuries.
Chief Judge Barbera recognized that injustices against people of color are not new and that sadly, little progress has been made to eliminate racial disparities. As participants in Maryland’s justice system, Chief Judge Barbera implored each of us to “fulfill our mandate to ensure equal justice to all under law” and to “contribute in any way we can to overcome the bias that divides and imperils our civil society” so as to “assure that our courts do not suffer bias, conscious or unconscious.”
On that same day, the United States Court of Appeals for the Fourth Circuit issued an opinion in Estate of Wayne A. Jones v. City of Martinsburg, West Virginia, No. 18-2142, a case in which a homeless black man was stopped by law enforcement for walking alongside, rather than on, the sidewalk. Jones, who possessed only a knife in his sleeve, was tased four times, hit, kicked, placed in a chokehold, and shot at 22 times before succumbing to his injuries.
Jones’s Estate brought an excessive force suit under 42 U.S.C. § 1983, but the district court granted summary judgment to the officers on the theory that they were protected by qualified immunity. In a surprising course of action by the Fourth Circuit, the Court not only reversed the district court, but in doing so, used its opinion as a platform to highlight the racial injustices in this country and to call for an immediate halt.
The Court noted that Jones was killed just one year before the Ferguson shooting of Michael Brown, an event which seven years ago “dr[e]w national scrutiny to police shootings of black people in the United States.” Id. at *9. Unfortunately, the intolerance did not end there. “Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis.” Id. The Fourth Circuit insisted that “[t]his has to stop” and that “[t]o award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.” The Court vacated the judgment and remanded to the district court. Id.
On June 15, 2020, Justice Clarence Thomas of the United States Supreme Court issued a dissenting opinion from the denial of certiorari in another 42 U.S.C. § 1983 case, Baxter v. Bracey, et. al., No. 18-1287. Baxter had sought damages in this excessive force suit after police officers released a dog to apprehend him resulting in the dog biting Baxter. The Sixth Circuit held that even if the officers’ conduct violated the Constitution, the officers were not liable because their conduct did not violate a clearly established right. After the Supreme Court denied certiorari on this issue, Justice Thomas issued a dissenting opinion to express his belief that there is no qualified immunity exception contained in the text of § 1983.
Section 1983 derived from the Ku Klux Act of 1871, the Civil Rights Act of 1871, and the Enforcement Act of 1871 in which Congress sought to respond to “the reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” Id. at p. 2 (internal citation omitted). Simply put, the act in 1871 gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights. According to Justice Thomas, the text of § 1983 “ma[kes] no mention of defenses or immunities.” Id. at p. 2 (internal citation omitted).
But in the 1950s, the Supreme Court began to question “whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983.” Id. at p. 3 (internal citation omitted). Over time, opinion by opinion, exceptions were made by the Court to § 1983 claims, resulting in the “qualified immunity” protection that police officers have become accustomed to. Justice Thomas believed that certiorari should have been granted because of the importance of this question: “we at least ought to return to the approach of asking whether immunity ‘was historically accorded the relevant official’ in an analogous situation at common law’” because he has “strong doubts” about § 1983’s qualified immunity doctrine. Id. at pp. 5-6 (internal citation omitted).
In a recent opinion by the United States Supreme Court, the Court did in fact tackle an issue with racially biased underpinnings. In Ramos v. Louisiana, 140 S. Ct. 1390 (2020), the Supreme Court held on April 20, 2020 that the Sixth Amendment right to a jury trial, as incorporated against the States by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. This holding made me re-check the year of the opinion because I thought surely that this principle had been long-established and adhered to in this country. But my naivety proved me wrong— Louisiana and Oregon, until April 20th— were able to obtain guilty verdicts in serious criminal cases where only 10 out of the 12 jurors found a defendant’s guilt beyond a reasonable doubt.
Because of antiquated racially-charged laws, Ramos was punished by a 10-to-2 verdict, and sentenced to life imprisonment without the possibility of parole. Id. at 1393. The origins of Louisiana’s nonunanimous convictions stemmed from a convention in 1898 in which the purpose was to “establish the supremacy of the white race.” Id. “With a careful eye on racial demographics, the convention delegates sculpted a ‘facially race-neutral’ rule permitting 10-to-2 verdicts in order ‘to ensure that African-American juror service would be meaningless.’” Id. at 1394. Similarly, Oregon’s rule permitting nonunanimous verdicts was traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” Id. at 1394.
Luckily, the Supreme Court relegated these laws “to the dustbin of history” and defendants in Louisiana and Oregon will now have the same protections under the Sixth Amendment as other defendants across America. Id. at 1410.
On April 30, 2020, the Maryland Court of Special Appeals upheld the constitutionality of Maryland Code Criminal Law Article § 10-305, the statute that precludes defacing property with evidence exhibiting animosity against groups because of their race, color, religious beliefs, or sexual orientation. In Lipp v. State, 2020 WL 2089685, Lipp contended that the statute violated his First Amendment right of freedom of speech.
In this case, Lipp and three others, went to a high school in Maryland where they spray-painted graffiti on the school building, sidewalks, and trash cans. The graffiti included swastikas, anti-LGBTQ phrases, “KKK,” “n****rs,” and “f**k jews.” Id. at *1. Additionally, the graffiti read “Burton is a n****r.” Burton was the school principal and is African-American.
Lipp was charged with and convicted of violating Criminal Law § 10-305(2). Burton argued that his conviction was infirm because the statute impermissibly regulated protected speech. The State argued that the statute punishes conduct, not speech. The Court of Special Appeals agreed with the State that the statute regulates harmful conduct, not the content of the speech. The Court noted that Lipp may have had a First Amendment right to spray paint his own property with the offensive words and symbols used here, but once he combined that action with the criminal act of defacing property of another, his criminal activity was not protected by the First Amendment.
We have arrived at what hopefully will be a critical turning point in our justice system. As practitioners, we must uphold the laws and practices that were created to help achieve equality and strike down the laws and practices that were created to suppress people of color. The recent sentiments expressed by our appellate courts should inspire us all to do better in our practice as attorneys, in our positions as public officials, and in our profession as a whole. Together, let’s join in this race to find justice.