Since the killing of George Floyd on May 25, the Virginia chapter of the American Civil Liberties Union has emerged as a powerful resource in asserting protesters’ legal rights to demonstrate and pursuing accountability for police violence and abuses of power.
While not an activist organization, the ACLU’s commitment to upholding civil liberties has been a critical arm of resistance against increasingly militarized state power. Currently, the ACLU is involved in active lawsuits against police departments that the organization believes have violated protesters’ civil liberties in at least 18 municipalities. Defendants in these lawsuits include the Richmond Police Department, the Virginia State Police and the Charlotte-Mecklenburg County Police Department, the former department in North Carolina of new Richmond Police Chief Gerald Smith.
Also, the ACLU is involved in advocating legislation. Gastañaga believes there is a legislative pathway to revoke qualified immunity in Virginia. In short, qualified immunity is a broad limitation on pursuing damages against individual police officers in civil court. Such a change could enable Virginians to pursue lawsuits against police officers in state courts.
In the conversation below, Virginia Director Claire Gastañaga discusses revoking qualified immunity in Virginia and Style also hears from Ashna Khanna, the group’s legislative director, and Phuong Tran, its digital communications manager.
Style Weekly: How do you see your role in the ongoing protests for justice for Black Lives?
Gastañaga: We see ourselves locally playing three roles. One is to defend the right of individuals to engage in free speech, protest and demonstrations, and also to challenge police misconduct. We are doing that both in advocacy and in the courts. The second is to lift up the demands of the communities we work with in collaboration and different coalitions to help create policy change at both the state and local level. And the third is to use our resources, which are relatively significant, including our communications team, to help elevate and amplify the voices of the people in the community we’re working with.
How are those goals translating to legislative actions?
Khanna: We know that there is a lot of talk about a legislative special session that will be addressing policing. We are very active in coalition with partners across the state to build momentum and hold legislators accountable to the values we want to see, so that the laws facilitate equitable policing.
We are ensuring that we are enforcing police accountability, that we are eliminating the legal protections that let police officers escape consequences, especially when it comes to unethical misconduct.
Part of that is looking at how can we end qualified immunity. When looking at the entire system, we have to look at how to reduce interactions, and more specifically, racist interactions with Black and brown community members between police and communities. Part of that has to do with the conversation about police in schools, part of that has to do with being involved in the war on drugs and making sure policy reform is being done with an equitable lens.
Gastañaga: When Mike Herring did his study on the root causes of crime in Richmond a couple of years ago, we stood up and said, “Hey, you know the No. 1 root cause of crime is what you choose to call a crime.” So if you’re going to call possession of drugs a crime, instead of decriminalizing like Portugal has done, then you create the root cause of crime. We are the root to the extent that we tolerate that.
Tran: We have a huge platform that we can elevate people and uplift Black and brown queer leaders in the community. I think these people have been there, speaking out against police violence for years but they didn’t get the [response] they needed. Now we have a momentum – we have great energy and we also have a platform here with a lot of social media followers. We want to elevate the voices that need to be elevated. We want to connect people to local leaders that have been doing the job for a long time, like Chelsea Higgs Wise, like Naomi Isaac, like the people Style Weekly featured in your “Race Capitol Roundtable.”
Another thing that we’ve been doing is to share resources like “Know Your Rights” to let people know what they can do in police interactions, telling people to use our mobile justice app to record police interactions and send it to us, and it’s been very helpful to view video. Even if we can’t be on the ground every night, we are on social media every night. Claire and I work closely together to try and find a way to respond and to also keep our legal team in the loop with what’s going on.
I want to highlight the importance of social media because we are living in the time of a pandemic and not everyone is able to be out protesting. People rely on local journalists and everyone to take pictures of the police to stay vigilant of them and to show the video to the public and put the problem in the spotlight.
Is qualified immunity something that can be revoked by the Virginia legislature?
Gastañaga: In the case of qualified immunity, that’s a federal law concept that has to do with the interpretation of the federal Constitution. We have a Virginia Constitution, and we have Virginia state courts and we have the ability to say, look, if Congress can’t get their act together and fix this nationally, we can give Virginians the ability to sue in state court over these kinds of things. And we can give Virginia the right cause of action to enforce the Virginia constitutional guarantees. So that’s a good example of looking at how much could be resolved by policy change locally or just by changing practices locally and empowering local advocates.
Does your office feel that a change is needed in the mayor’s office in November?
Gastañaga: We don’t do that kind of electioneering work, but we are going to continue to look at the structural change that’s needed and obviously we are going to help people understand who is leading in the right direction, and who is not leading in the right direction.
Do you believe that the declarations of unlawful assemblies over these past two months are fundamentally illegal?
Gastañaga: We believe that there are substantial parts of the regulations that they’re using as their predicate for the unconstitutional police actions they’re taking. We have said so since we did our big white paper on permitting protests and demonstration and filed our comments on the original emergency regulations that Governor [Terry] McAuliffe proposed.
What kind of ripple effects are there if a civil court agrees that some of these enforcements are illegal, but the police continue to arrest protesters, as well as cause injuries through the deployment of chemical weapons, flash-bangs and rubber bullets?
Gastañaga: Well, again the problem is with the ways that qualified immunity is interpreted in the federal courts now. If a court hasn’t said clearly, unequivocally, and exactly the right words – that what you did was “unconstitutional,” then you can’t be held liable until the second time you do it. You never have the opportunity to get a court to agree if you’re suing for damages when what happened was unconstitutional because they always deal with qualified immunity first. So, you never get the court decision you need to go back if they do it again.
What do you see as the stumbling blocks for the commonwealth’s attorney in Marcus-David Peters’ case, and how have you been involved?
Gastañaga: We were party to a conversation with the commonwealth’s attorney where she committed at least to review the case again, she refused to commit to anything beyond that in that conversation, but that’s where that has to start. We obviously support the Marcus Alert idea and the concept that the person that shows up in that circumstance needs to be somebody who is not a police person and somebody that can actually interact with the person who is having a mental health crisis.
I watched that videotape and my personal view was that an untrained person got out there and did some things that a properly trained person would never have done. That means he should have been held accountable for it, and the department should have been held accountable. A man who needed help was killed. You compare what happened to him with what happened to the white guy who killed three people and ran around naked down southwest and managed not to get killed being taken into custody and arrested for murder.
