Place Your Bets: A New Means of Economic Activity in Louisiana through Sports Gambling

John Frey

Introduction

Louisiana is consistently one of the poorest states in America. There are different metrics for what makes a state “poor”; however, Louisiana earns the label regardless of how it is defined. For example, when using the percentage of the population living at or under the poverty line as the standard for whether a state is poor, Louisiana ranks second to last.[1] When ranking states based on a combination of variables, including state finances, state economies, and state job markets, Louisiana ranks, once again, second to last.[2]

Logically, a state struggling financially might want to embrace a new stream of income. For Louisiana, sports gambling provides just that.[3] In November of 2020, Louisiana voters in 55 out of 64 parishes voted to make sports betting legal within their parish, which will lead to the legalization of sports betting in a majority of the state.[4] This result was not a surprise, as Louisiana is no stranger to gambling.[5] In 2020, Louisiana’s gambling offerings, such as casinos, video poker machines, and racetracks, generated $609 million in state taxes, which accounted for roughly 5% of Louisiana’s overall revenue.[6] For comparison, Louisiana is also a prominent oil and gas producer, and oil and gas production only accounted for $550 million in state taxes, which was 4.5% of the state’s revenue.[7] While Louisiana voters may not consider potential tax revenue as the driving force behind their voting decisions, the legalization of sports gambling provides Louisiana with both a new stimulus to its struggling economy and a new pool for state taxes.[8]

I. Sports Gambling in Other States

Until recently, Nevada was the only state with legalized sports betting.[9] Nevada’s legal sports betting dates back to 1931, although sports betting was not treated as its own form of gambling until 1949.[10] In 1992, Congress enacted the Professional and Amateur Sports Protection Act (PAPSA), which effectively made it illegal to gamble on the outcome of competitive sports.[11] However, the PAPSA contained a grandfather provision to allow Nevada to continue its sports betting operations.[12] In 2018, the United States Supreme Court’s opinion in Murphy v. National Collegiate Athletic Ass’n rendered the PAPSA unconstitutional, which opened the door for other states to follow in Nevada’s footsteps and legalize sports gambling.[13]

Since the Murphy decision, many states have legalized sports gambling, and these states have seen increased economic activity and tax revenue as a result.[14] Currently, Arkansas, Colorado, Delaware, Illinois, Indiana, Iowa, Nevada, New Hampshire, New Jersey, New York, Michigan, Mississippi, Montana, Oregon, Pennsylvania, Rhode Island, Tennessee, Virginia, and West Virginia have fully functioning, regulated sports betting industries.[15] Interestingly, New Mexico’s lawmakers have yet to pass a sports betting bill, but patrons of tribal casinos throughout the state have been able to place legal sports bets since October of 2018, making sports betting effectively legal in New Mexico as well.[16] North Carolina, Maryland, Louisiana, and South Dakota’s voters have approved the legalization of sports betting, and the residents of these states are now waiting on their lawmakers to enact a structured bill.[17] Currently, 24 states have either legal or soon-to-be legal sports betting—an impressive increase from only one state in 2018.[18]

Sports betting does two things for states that have legalized the activity. First, a state’s economy is stimulated simply by providing a new way for money to circulate.[19] The term “handle” is used to describe the total amount of money wagered on bets, and the sports betting handle for states that are not necessarily known for gambling—states other than Nevada and New Jersey—is quite impressive.[20] For example, Pennsylvania residents have spent nearly $6 billion on sports-related betting since 2018.[21] Further, the entity streamlining the betting process, known as a “sportsbook,” makes money from the process through taking a small percentage of the total bets placed with the sportsbook.[22] This percentage is referred to as the “hold percentage,” and it ranges anywhere from 6.1% in Virginia to 17% in Washington D.C.[23]

Second, sports gambling allows states to tax the money flowing in and out of the sports betting process, and the taxes generated can be very valuable. Nevada has collected nearly $57 million in taxes on sports betting activities since 2018.[24] While Nevada did not have to build its sports betting infrastructure from the ground up, as sports betting was legal there prior to 2018, even states that were late to the game have realized significant tax revenue.[25] Delaware, Illinois, Indiana, and Rhode Island have already collected $20 million in taxes since the legalization of sports betting, and none of those states had a near-hundred-year head start.[26] Most surprisingly, Pennsylvania’s sports betting tax has surpassed a nine-digit figure—nearly $110 million since 2018.[27] Needless to say, through economic stimulation and collection of a new source of tax dollars, there is money to be made for a state through the legalization of sports betting.

II. Sports Betting in Louisiana

While voters in 55 of 64 Louisiana parishes voted to legalize sports betting, there are currently no licensed physical sportsbooks in the state.[28] Likewise, there are currently no online sites licensed to operate as sportsbooks in Louisiana.[29] The timeline for when sports betting will be fully operational, and what it will look like once it is operational, is not yet certain. However, given Louisiana’s gambling background, the ability to consider physical gambling and online gambling as separate ideas, which both implicate different licensing and regulatory issues and can provide two distinct avenues for citizens to place sports bets, and the ability to look to other states that have already gone through the regulatory process, the process should not be particularly difficult, and Louisiana should see positive results.

Louisiana has a long history with gambling, and the prospect of new jobs and new tax revenues made the November 2020 vote on whether to legalize sports betting a simple decision.[30] Louisiana currently boasts many forms of gambling, which bodes well for its ability to implement a new type of gambling, as the state has already accommodated different types and forms of gambling over the years.[31] Louisiana residents can gamble in the form of a lottery, in-person horse racing, off-track horse racing, charitable raffles, truck stop and tavern-style video poker, and at full-scale casinos.[32] Currently, the only form of regulated online gambling is off-track horse racing.[33] However, Louisiana lawmakers clearly understand how to facilitate online gambling, as the state already regulates off-track horse racing, which can serve as a template for regulations of online sports betting. Further, the wide range of in-person options evidences an ability to easily accommodate both in-person sports betting and online sports betting.

Now that Louisiana voters have established their desire to legalize sports betting, the two biggest questions that remain are when Louisiana residents will be able to bet on sports and what means they will have to place their bets. The exact timeline is uncertain, but there is optimism that it will not take long for Louisiana to develop the necessary sports betting infrastructure.[34] Senator Ronnie Johns, who sponsored the bill ultimately responsible for legalizing sports betting, believes a plan will be in place by April of 2021.[35] However, obstacles to the implementation of sports betting exist. In a world with COVID-19, it may be difficult allocating the proper resources necessary to fast-track something as unrelated to the pandemic as sports betting.[36] The ability of sports betting to create new jobs and stimulate economic activity, however, attracts Louisiana lawmakers’ attention.[37] Thus, Louisiana residents should not have to wait long until they can place their first bets.

While sports betting has the attention of Louisiana lawmakers, the question of how lawmakers will shape sports betting still remains.[38] At the very least, Senator Johns has made it clear that sports betting should be taxed at a lower rate than 21%, the rate levied upon casinos.[39] However, whether sports betting will be offered in-person, online, or through a mix of the two is yet to be determined.[40] If in-person sports betting is offered, it is likely that Louisiana casinos will open sportsbooks within existing physical locations.[41] Louisiana’s neighbor, Mississippi, currently operates its sports betting on an on-site-only basis; therefore, Louisiana can look to Mississippi for guidance on how to incorporate a sportsbook into its already operational casinos.[42] For online offerings, there are multiple established online sportsbooks, such as DraftKings, that Louisiana could utilize if it so chooses.[43] Tennessee is an example of a state that opted to offer only online sports betting, and it has seen great success from the choice to go strictly online.[44] Expect Louisiana lawmakers to consider both in-person and online options.

Ideally, Louisiana residents will have the ability to place sports bets both in-person and online. As lawmakers in Louisiana have already showed an ability to foster online gambling options and create firm infrastructure for in-person gambling, Louisiana stands to benefit from allowing potential sports betters to have access to either option.[45] The overhead should not be significant for casinos, as the processes already exist in other forms, and the easier it is for a resident to place a sports bet, the easier it will be for Louisiana to tap into this new form of economic stimulus.[46] This dual system benefits both Louisiana residents, with increased access to sports betting, and the State of Louisiana’s purse, as more sports bets will be placed.

Conclusion

Louisiana needs all of the financial help it can get.[47] Sports betting provides the state with a means of economic activity through new jobs, new tax revenues, and a new consumer product.[48] Louisiana citizens believed sports betting to be a worthwhile endeavor and successfully voted to legalize the activity throughout the state.[49] While it is uncertain when Louisiana residents will get to place their first bet, the positive economic potential of sports betting is likely to provide Louisiana lawmakers with reason to get the process done quickly.[50] Louisiana lawmakers must decide whether to provide in-person options, online options, or a mix of both.[51] Regardless of the ultimate shape of sports betting in Louisiana, a dual system of in-person and online sports books would allow Louisiana to obtain the most benefits from this new gambling activity.

 

[1] Top 10 Poorest States in the U.S., Friends Committee on National Legislation (Oct. 5, 2020), https://www.fcnl.org/updates/2020-10/top-10-poorest-states-us [https://perma.cc/ZX7H-X46R].

[2] Samuel Stebbins, Grant Suneson & Michael B. Sauter, Best and Worst Run States in America: A Survey of All 50, 24/7 Wall St. (Dec. 20, 2020), https://247wallst.com/special-report/2020/12/08/best-and-worst-run-stateamerica-a-survey-of-all-s-in-50-3/11/ [https://perma.cc/DJX3-PGGW].

[3] US Sports Betting Revenue and Handle, Legal Sports Report, https://www.legalsportsreport.com/sports-betting/revenue/ [https://perma.cc/AV3G-U8JN] (last visited Mar. 3, 2021).

[4] Matt Amato, Louisiana Sports Betting: Voters Enable Regulators to Decide State’s Fate, Lineups (Feb. 22, 2021), https://www.lineups.com/betting/louisiana-sports-betting/ [https://perma.cc/T9TM-JWH2].

[5] Tyler Bridges, Modern Gambling in Louisiana Began 30 Years Ago. Now, It ‘Would Take a Crowbar’ to Take It Away, Advocate (Nov. 14, 2020), https://www.theadvocate.com/baton_rouge/news/politics/article_776b5c30-2506-11eb-986c-ffc1b2280259.html [https://perma.cc/K963-2KXV].

[6] Id.

[7] Id.

[8] See generally US Sports Betting Revenue and Handle, supra note 3.

[9] Jeremiah Booker, History of Sports Betting in Las Vegas, Best US Casinos (Jan. 26, 2020), https://www.bestuscasinos.org/blog/history-of-sports-betting-in-las-vegas/ [https://perma.cc/8J7R-4Q69].

[10] Id.

[11] 28 U.S.C. § 3702.

[12] Id.

[13] 138 S. Ct. 1461 (2018).

[14] See generally US Sports Betting Revenue and Handle, supra note 3.

[15] Legislative Tracker: Sports Betting, Legal Sports Report, https://www.legalsportsreport.com/sportsbetting-bill-tracker/ [https://perma.cc/ST98-D9F8] (last visited Mar. 3, 2021).

[16] Legal Sports Betting in New Mexico, US Betting Report, https://usbettingreport.com/sports-betting/new-mexico/ [https://perma.cc/SL8D-EAJS] (last visited Mar. 3, 2021).

[17] Legislative Tracker: Sports Betting, supra note 15.

[18] Id.

[19] Mark Skousen, Consumer Spending Drives the Economy?, Foundation for Economic Education (Sept. 22, 2020), https://fee.org/articles/consumer-spending-drives-the-economy/ [https://perma.cc/9Z46-HELD].

[20]  US Sports Betting Revenue and Handle, supra note 3.

[21] Id.

[22] Id. To operate in a profitable manner, sportsbooks structure the betting process in a way that ensures overall that the sportsbook will make money in the long run, Profitability is ensured through slightly manipulating the odds of a certain bet. For example, if the sportsbook believes a sporting event has a fifty-fifty outcome, the sportsbook will set the odds in a manner that results in a $10 bet paying out $9. This way, assuming an equal number of bets are placed on both the winner and the loser of the sporting event, which should be the case long-term, the sportsbooks still profit after paying out the winning bets.

[23] Id.

[24] Id.

[25] See generally id.

[26] Id.

[27] Id.

[28] Amato, supra note 4.

[29] Id.

[30] Bridges, supra note 5.

[31] See generally Louisiana Casinos, Online United States Casinos, https://www.onlineunitedstatescasinos.com/states/louisiana-gambling/ [https://perma.cc/WU7C-D2ZB] (last visited Mar. 5, 2021).

[32] Id.

[33] Id.

[34] See generally Ryan Nelson, Matthew Bennett & Mahogani Counts, When Will Sports Betting Be Allowed in Louisiana? It May Not Happen This Year, Daily Advertiser (Feb. 10, 2021), https://www.theadvertiser.com/story/news/local/louisiana/2021/02/11/sports-betting-louisiana-rules-taxes-details-may-take-time/4460311001/ [https://perma.cc/UG5Y-H8YK].

[35] Id.

[36] See generally State Fiscal Responses to Coronavirus (Covid-19), National Conference of State Legislatures (June 30, 2020), https://www.ncsl.org/research/fiscal-policy/state-fiscal-responses-to-covid-19.aspx [https://perma.cc/DA2B-J9C6].

[37] See generally Nelson, Bennett & Counts, supra note 34.

[38] Id.

[39] Id.

[40] See generally Amato, supra note 4.

[41] See generally id.

[42] See Mississippi Sports Betting Information – Sportsbooks, Betting Sites, Sportshandle, https://sportshandle.com/mississippi/ [https://perma.cc/4MAN-D6VB] (last visited Mar. 7, 2021).

[43] See generally Amato, supra note 4; Draftkings Sportsbook, Draftkings, https://sportsbook.draftkings.com/featured?category=live-in-game [https://perma.cc/56H5-SHWZ] (last visited Mar. 7, 2021).

[44] Calvin McAlee, Tennessee Sports Betting: Ranking the Top Sportsbooks Apps 2021, Lineups (Feb. 1, 2021), https://www.lineups.com/betting/tennessee-sports-betting/ [https://perma.cc/DX8W-QVGP].

[45] See generally Louisiana Casinos, supra note 31.

[46] See generally id.

[47] See generally Top 10 Poorest States in the U.S., supra note 1.

[48] See generally US Sports Betting Revenue and Handle, supra note 3.

[49] Amato, supra note 4.

[50] See generally Nelson, Bennett & Counts, supra note 34.

[51] Amato, supra note 4.

Qualified Immunity through the Lens of Spears v. Gautreaux

Ani Boudreaux

Introduction

On February 23, 2016, Baton Rouge police officers fired 21 times at Travis Stevenson while he was having a mental health crisis.[1] Travis did not survive this encounter with police, and his death has become one part of a larger story. The deaths of George Floyd, Breonna Taylor, and many others have revived a national debate about the need for reform of qualified immunity, which provides an affirmative defense for law enforcement officers in certain situations.[2] On June 17, 2020, the Middle District of Louisiana granted summary judgment in favor of the police officers involved in Stevenson’s killing, holding that they were protected from liability under qualified immunity.[3] There is not a single overwhelming theory of change that would solve all problems with the doctrine in one fell swoop. This post aims to present both federal and state proposals, thus allowing the reader to better understand the history of qualified immunity and the types of issues facing the 5th Circuit on appeal in the case Stevenson’s successors filed, Spears v. Gautreaux.[4]

I. A Brief History of Qualified Immunity

There are different ways that law enforcement agencies and officers can be held accountable for their unlawful actions. For instance, the Department of Justice (DOJ) can pursue criminal charges under 18 U.S.C. §§ 241 and 242.[5] The DOJ can also file a civil complaint against law enforcement agencies pursuant to 34 U.S.C. § 12601.[6] Private persons, on the other hand, may only seek civil redress for violations of their civil rights under 42 U.S.C. § 1983.[7] Under § 1983, persons who are deprived of “any rights, privileges, or immunities secured by the Constitution and laws” by a person acting under the law have a claim to sue those individuals who harmed them.[8] This statute allows plaintiffs to recover civil damages when their constitutional rights have been violated.[9] The individuals who might be found liable under § 1983, acting under “color of law,”[10] may defend themselves using a doctrine commonly known as qualified immunity.[11]

While § 1983 originally applied to state law actors, the Supreme Court expanded the statute’s reach in Bivens v. Six Unknown Federal Narcotics Agents to include federal government officials as well.[12] The Court further provided a “good faith defense” to government officers in    § 1983 cases in Pierson v. Ray.[13] The modern doctrine of qualified immunity was solidified in Harlow v. Fitzgerald, in which the Court stated that “government officials performing discretionary functions generally are shielded from liability.”[14] The Court reasoned that the policy behind the doctrine was to shield officials from the burdens of trial, as the litigation process can be disruptive of government operations.[15] The Court laid out a two-step analysis for this doctrine in Saucier v. Katz,[16] stating that the threshold question is, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”[17] Second, the Court must consider whether that constitutional right was  “clearly established” in prior case law.[18] The Supreme Court further defined this doctrine in later cases, holding that judges had discretion in deciding which prong of the test to consider first, thus allowing the second question to become the entire analysis for the doctrine.[19] The Court has also asserted that the clearly established right needs to be particularized to the facts of the case, creating a very high bar of proof for plaintiffs to overcome a qualified immunity affirmative defense in § 1983 claims against law enforcement officials.[20]

II. The Case: Spears v. Gautreaux

 As the debate over the efficacy of the doctrine has continued for over 50 years, courts are applying the law as it stands now, whether they agree with the policy behind the doctrine or not. One such instance is Spears v. Gautreaux.[21] According to the Middle District of Louisiana’s opinion, the incident in this case occurred on February 23, 2016, when sheriff deputies were called out to an incident at an apartment at 8236 Innovation Park Drive in Baton Rouge.[22] The situation involved Travis Stevenson, who had allegedly assaulted his girlfriend and her daughter, taken his girlfriend’s wallet, and subsequently threatened to jump off the Mississippi River Bridge.[23] Stevenson left the apartment prior to officers arriving on the scene.[24] Lieutenant Michael Birdwell, a Baton Rouge sheriff’s deputy, located Stevenson near an apartment building about a mile from the bridge, sitting in his car.[25]

When Birdwell approached the vehicle and knocked on the window, Stevenson put the car in reverse, striking the Lieutenant’s car, and then accelerated forward.[26] Arriving on the scene, Sergeant Scott Henning Jr. fired his weapon at the car and broke a window, and he later stated that he believed that Stevenson was going to hit Birdwell.[27] Deputy Shannon Broussard also approached the scene and fired 2 to 3 rounds into the rear tire of Stevenson’s vehicle to stop him from continuing to reverse and pull forward.[28] Stevenson continued to pull forward and reverse, putting Birdwell again in danger of being hit by the vehicle.[29] Broussard discharged 6 or 7 rounds at Stevenson.[30] At the same time, Sergeant Charles Montgomery and Sergeant Verner Budd III, who were also at the incident, fired shots at Stevenson as well.[31] Stevenson was transferred to a local hospital where he later succumbed to his injuries.[32] The East Baton Rouge Sheriff’s Office and the Louisiana State Police Criminal Investigative Division completed a joint investigation of the officer-involved shooting and found that there was “no criminal misconduct on behalf of the deputies involved.”[33] The groups further stated that the actions of the deputies were “consistent with a person’s right to defend another person, who is in reasonably apparent danger of receiving death or great bodily harm.”[34] After reviewing these facts and the arguments from both sides in a civil action brought by Stevenson’s successors, the Middle District granted the defendants’ motion for summary judgement, asserting that qualified immunity shielded the law enforcement officers from liability.[35]

In November of 2020, the Plaintiff-Appellants filed a brief, with representation from the ACLU of Louisiana and UC Irvine’s Civil Rights Litigation Clinic, with the U.S. Fifth Circuit Court of Appeals asking the court to overturn the district court decision granting qualified immunity to the sheriff’s deputies in Spears.[36] Within this brief, Plaintiff-Appellants asserted that “there was no objectively reasonable basis for the deputies to believe that Mr. Stevenson posed any immediate threat of death or serious bodily injury to anyone on scene when they fired.”[37] They asserted generally that there are issues of material fact that need to come out at trial about whether the law enforcement officers’ conduct was unreasonable under clearly established law, thus arguing that a grant of summary judgment in this case was inappropriate.[38] The Fifth Circuit has not taken up this appeal as of the publication of this piece.

III. Proposals: Positives and Negatives

Qualified Immunity has been a hotly debated subject within the legal community and the public at large. The premise of the protection, that frequent litigation would undermine law enforcement work,[39] may still be good policy today, but the doctrine has seemingly failed in strengthening police protection, allowing misconduct to go unchecked in some instances. The qualified immunity doctrine was created to protect government officals or law enforcement officers from trial, but the way that the affirmative defense is applied in practice still forces officials to pay legal fees and appear in court to assert the defense, which still forces officials to take time off from their work to serve the public.[40] To remedy the issues with this doctrine, there needs to be a change of the evaluation that court use when assessing qualified immunity protection against injured civilians’ § 1983 claims. Congress may also be able to pass legislation to guide courts on narrowing the analysis of protection under qualified immunity by promulgating a more stringent threshold that must be satisfied to apply the defense. The main goal of any new solution should be to save lives and stop injuries, both for police and civilians.

A. Federal Proposals

In the 116th congressional session, there were proposals to reform qualified immunity.[41] Although Congress did not ultimately pass these bills, they provide interesting ideas about future actions and may be reintroduced in upcoming sessions.

In the summer of 2020, Representative Justin Amash introduced the Ending Qualified Immunity Act, or H.R. 7085.[42] This legislation would have done exactly what its name implies and ended the affirmative defense of qualified immunity for state and local government employee action that violates § 1983.[43] Ending the doctrine altogether may be a harsh reality for government entities that are defending and funding the defense of their individual employees.[44] This type of solution may go too far and too fast to be sustainable, although some critics of qualified immunity would argue that this is exactly the type of solution that is needed for this tremendous liability problem that America is facing.[45] Such drastic change would essentially force officials to change the way that policing is done.[46]

Senator Mike Braun introduced the Reforming Qualified Immunity Act, S. 4036, which is another interesting idea.[47] This legislation would not have allowed a defense of qualified immunity in its current form to any action under § 1983.[48] The Act would have changed the affirmative defense for defendants in two different ways.[49] If the defendant asserts that  either the defendant believed that the conduct in question was lawful, or that judicial decisions addressing the validity of a law assert that the law was constitutional,[50] the defendant would have to establish that, at the time the deprivation of rights occurred, the conduct was specifically authorized or required by a federal or state statute or regulation.[51] This change in the affirmative defense would seemingly shift the burden to a defendant to prove that their conduct was authorized or required, releasing plaintiffs of their high burden of proof the conduct was stated to be clearly unlawful under the current qualified immunity defense.[52] This middle-of-the-road approach may draw more approval from both sides of the qualified immunity argument, but critics may assert that a proposal of this type does not go far enough. While officers may still be able to escape liability on summary judgment, instead of letting a plaintiff have their day in court, this Act seemingly creates a more even playing field for both plaintiffs and defendants for proving their cases.[53]

In the interest of a broader reform approach, Congress also  considered the JUSTICE Act, S. 3985, and the Justice in Policing Act of 2020, H.R. 7120.[54] Both of these pieces of legislation focus on the entire picture of policing in America, not just the judicial analysis of qualified immunity.[55] A wide sweeping legal reform may be a better way to strengthen the American people’s confidence in the judicial system, law enforcement, and government in general. Politically, large, multi-part legislation may be easier to pass through the legislative process all at once, as there are more ways to compromise.[56] Also, it may be easier for agencies to follow one cohesive piece of legislation, rather than individual laws that must be patched together. Granted, with sweeping reforms, there may be a loss of jobs, greater financial stresses, and larger strain on government resources to enforce these new changes.[57]

B. State Proposals

States sometimes have great insights into issues that are plaguing the nation, and their solutions may be applied on a large scale. Recently, Colorado’s state legislature passed into law the Enhance Law Enforcement Integrity Act, which provides that, beginning in 2023, a person who has a constitutional right under the Bill of Rights of the Colorado Constitution that is infringed upon by an officer can bring a civil action for the violation.[58] Importantly, qualified immunity will not be a defense to these civil actions.[59] The Act requires a political subdivision of the state to indemnify its employees for such claims, except if the officer’s employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful.[60] The public entity does not have to indemnify an officer if the officer was convicted of a criminal violation for the conduct from which the claim arises.[61] Colorado’s approach may be a good starting point for the nation, but it remains to be seen how this change will affect the state. In current cases, even if qualified immunity does not protect law enforcement from civil liability, it is likely that state governments satisfy the judgments against officers.[62] In essence, state governments are protected by qualified immunity in not having to indemnify law enforcement officers.[63] Colorado’s new statute would not only abolish the protections of qualified immunity ompletely, but it would subject the state entity to pay out judgments for its bad actors.[64]

In changing the defense, Connecticut has also enacted similar legislation, but it does not go as far as Colorado’s Enhance Law Enforcement Integrity Act.[65] The Connecticut law allows for a state private right of action against a law enforcement officer for actions of the officer that deprived the individual or a class of individuals of the equal protection or privileges and immunities of state law.[66] This legislation does not allow for any immunity in defense of these actions.[67] But instead of making state entites liable for their bad actors, the actors themselves would be the only ones held accountable.[68] These two approaches only differ slightly, but can result in completely different outcomes in a suit.

In the wake of the death of George Floyd and other incidents of police brutality that have been recorded and viewed across the nation, calls for disbanding the police have grown louder. Advocates of such change argue that policing needs to change, and that community policing and an emphasis on social services, along with less protection and funding for the police, are necessary to regain the confidence of the public and create a feeling of safety within minority neighborhoods again. Some cities within the United States have decided to disband their police department and start fresh. Camden, New Jersey made the decision to disband their police force in 2012 and after seven years of a new smaller law enforcement presence, the city cut their crime rate almost in half.[69] Now, Minneapolis, Minnesota seems as though it will follow suit in the near future.[70] The Minneapolis City Council declared its intention to dismantle the current law enforcement agency, shifting its funding “toward community-based strategies” that would take the place of a police department. [71] It will be interesting to see how these ideas progress in the future and if this idea will grow into a nation-wide plan of reform.

Conclusion

For injured plaintiffs like Travis Stevenson moving forward, the ending or changing of qualified immunity by Congress would allow representatives the ability to present their case in front of a jury, instead of stopping at summary judgment. A shift in the burden of proof could mean a meaningful change in the judicial analysis of such cases, so that the public’s needs are better served.[72] This first step to change qualified immunity is embodied in the proposed bill, the Reforming Qualified Immunity Act.[73] Shifting the burden of proof to the defendant to prove that the conduct in question was specifically authorized or required by a federal or state statute or regulation would better serve the public as victims are more likely to get their day in court and keep law enforcement accountable for their actions.[74] Although critics may not believe that this proposal would be bold enough, it is a first step to changing this dire situation in the United States. At the very least, the judicial system should allow the families of individuals killed in police incidents to have their day in court and this Act would seem to foster a more reasonable judicial system for both the plaintiff and defendant.[75]

Additionally, the modern qualified immunity doctrine does not seem to fulfill the policy reason behind it, to protect officers from suit so that they may better serve the public interest.[76] Officers still have to come into court to assert that they are entitled to immunity, rather than dispensing with the suit before hearings even take place. If this policy reason is not being met, why preserve the defense when it just serves to limit a plaintiffs’ ability to move past the summary judgment stage at trial? For now, the legal community will just have to wait and see if the Supreme Court changes its analysis for qualified immunity, or if Congress agrees on what must be done to help the people of this country feel safer and more secure in their individual rights.

All proposals for reshaping the way that the judicial system handles qualified immunity are a step in the right direction, as they increase awareness of the issues that affect the population. Continuing this conversation will help to ignite new ideas in bettering the nation. Focusing on changing the affirmative defense of qualified immunity may be a single positive step in the right direction for United States policing reform.

 

[1] See,generally, Spears v. Gautreaux, No. 17-105-JWD-EWD, 2020 WL 3271993, at *1 (M.D. La. June 17, 2020).

[2] Say Their Name, Gonzaga University (Sept. 5, 2020), https://www.gonzaga.edu/about/offices-services/diversity-inclusion-community-equity/say-their-name#inmemoriam [https://perma.cc/QXJ5-YKZC].

[3] See, generally, Spears, 2020 WL 3271993, at *1.

[4] ACLU of Louisiana Asks Fifth Circuit to Overturn Grant of Qualified Immunity to Officers Who Killed Unarmed Man in Baton Rouge, ACLU of Louisiana (Nov. 16, 2020), https://www.laaclu.org/en/press-releases/aclu-louisiana-asks-fifth-circuit-overturn-grant-qualified-immunity-officers-who [https://perma.cc/T6NZ-K6N4].

[5] Joanna R. Lampe, Cong. Rsch. Serv., LSB10486, Congress and Police Reform: Current Law and Recent Proposals 1 (2020).

[6] Id.

[7] Id.

[8] 42 U.S.C. § 1983.

[9] Whitney Novak, Cong. Rsch. Serv., LSB10492, Policing the Police: Qualified Immunity and Considerations for Congress 1 (2020).

[10] Monroe v. Pape, 365 U.S. 167, 184 (1961). The Supreme Court stated that the “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” Id.

[11] Id.

[12] 403 U.S. 388 (1971)

[13] 386 U.S. 547 (1967).

[14] 457 U.S. 800, 818 (1982).

[15] Id.

[16] 533 U.S. 194, 201 (2001).

[17] Id.; see also Siegert v. Gilley, 500 U. S. 226, 232 (1991).

[18] Saucier, 533 U.S. at 201.

[19] Pearson v. Callahan, 555 U.S. 223, 818 (2009).

[20] See generally Mullenix v. Luna, 577 U.S. 7 (2015).

[21] No. 17-105-JWD-EWD, 2020 WL 3271993, at *1 (M.D. La. June 17, 2020); see also Bryn Stole, Sheriff Releases Identities of Six Deputies Involved in Shooting Death Tuesday in Baton Rouge, Advocate (Sept. 22, 2016, 9:50 PM) https://www.theadvocate.com/baton_rouge/news/crime_police/article_88aad376-0fe1-56b3-b9fd-7f68928db7d9.html [https://perma.cc/K3YE-LFSS].

[22] Spears, 2020 WL 3271993, at *1.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at *2.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at *3.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id. at *17, *25.

[36] See supra note 2.

[37] Id.

[38] Id.

[39] See generally Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[40] See generally Saucier v. Katz, 533 U.S. 194, 201 (2001).

[41] Ending Qualified Immunity Act, H.R. 7085, 116th Cong. § 2 (2020); Reforming Qualified Immunity Act, S. 4036, 116th Cong. § 2 (2020).

[42] Ending Qualified Immunity Act, H.R. 7085, 116th Cong. § 2 (2020).

[43] Id.

[44] See generally Joanna C. Schwartz, Police Indemnification, 89 NYU L. Rev. 885, 892 (2014).

[45] See generally Hayden Carlos, Disqualifying Immunity: How Qualified Immunity Exacerbates Police Misconduct and Why Congress Must Destroy It, 46 S.U. L. Rev. 283 (2019).

[46] Id.

[47] Reforming Qualified Immunity Act, S. 4036, 116th Cong. § 2 (2020).

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] The second inquiry for qualified immunity analysis, whether “a right [was] clearly established,” would force the plaintiff to prove that there is prior precedent that the officer’s conduct was a deprivation of rights. Saucier v. Katz, 533 U.S. 194, 201 (2001).

[53] See generally Harlow, 457 U.S. at 818.

[54] JUSTICE Act, S. 3985, 116th Cong. § 2 (2020); Justice in Policing Act of 2020, H.R. 7120, 116th Cong. § 2 (2020).

[55] See generally S. 3985. See also H.R. 7120.

[56] See generally Michael C. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803 (2006); Jesse Rifkin, What if Each Bill Congress Debated Only Dealt with One Topic?, GovTrack.us (Aug. 31, 2016), https://govtrackinsider.com/what-if-each-bill-congress-debated-only-dealt-with-one-topic-83b59a60a534 [https://perma.cc/K3TM-ER9P].

[57] See generally Peter Nickeas, Why Sweeping Police Reform over the Last Year Has Largely Been Elusive, CNN (Mar. 7, 2021, 1:56 PM) https://www.cnn.com/2021/03/07/us/police-reform-george-floyd-breonna-taylor/index.html [https://perma.cc/J5KT-7XLW].

[58] Enhance Law Enforcement Integrity Act, S.B. 20-217 (2020).

[59] Id.

[60] Id. If the officer is found to have acted in bad faith, then the peace officer is personally liable for 5% of the judgment or $25,000, whichever is less. If the judgment is uncollectible from the officer, the officer’s employer will satisfy the whole judgment. Id.

[61] Id.

[62] See, e.g., Schwartz, supra note 44, at 892.

[63] Id.

[64] Enhance Law Enforcement Integrity Act, S.B. 20-217 (2020).

[65] H.B. 6004 (2020).

[66] Id.

[67] Id.

[68] Id.

[69] Scottie Andrew, This City Disbanded Its Police Department 7 Years Ago. Here’s What Happened Next, CNN (June 9, 2020, 11:23 AM), https://www.cnn.com/2020/06/09/us/disband-police-camden-new-jersey-trnd/index.html [https://perma.cc/J72V-76HC].

[70] Dakin Andone, Minneapolis City Council Members Intend to Defund and Dismantle the City’s Police Department, CNN (June 9, 2020, 5:46 AM), https://www.cnn.com/2020/06/07/us/george-floyd-protests-sunday/index.html [https://perma.cc/CE2J-DFR5].

[71] Id.

[72] Reforming Qualified Immunity Act, S. 4036, 116th Cong. § 2 (2020) (generally shifting the burden of proof onto defendants in qualified immunity’s second inquiry).

[73] Id.

[74] Id.; Saucier v. Katz, 533 U.S. 194, 201 (2001).

[75] See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[76] Id.

The Split Continues: An Update on the Never-Ending Ambiguity Surrounding the Securities Litigation Uniform Standards Act

Emiley E. Dillon

Introduction

Securities litigation and enforcement often increase in times of financial hardship and crisis, and experts believe that the COVID-19 pandemic will be another example of this reality.[1] One critical choice any plaintiff’s attorney in a securities-related class action must make is whether to bring a claim under federal or state law. As securities litigation increases in response to COVID-19, this jurisdictional decision will likely become more relevant.[2] Even before COVID-19, however, this choice has taunted securities lawyers. Congress enacted the Securities Litigation Uniform Standards Act (SLUSA) to give effect to the Private Securities Litigation Reform Act (PSLRA) by preventing claimants from bringing security fraud claims in state court as a method of avoiding the PSLRA’s more stringent federal pleading standards.[3] The SLUSA provides that a claimant may not bring a class action involving more than 50 members in any state court based on state law if the claim involves a nationally listed security and alleges “an untrue statement or omission of a material fact . . . [or] manipulative or deceptive device or contrivance” in connection with buying or selling a covered security.[4]

Federal circuit courts have taken varying approaches to the single question of when a complaint alleges a misstatement or omission sufficient to warrant SLUSA preemption.[5] The question of preemption becomes more difficult to answer when the complaint alleges traditional state-law claims of breach of fiduciary duty or breach of contract with incidental aspects of security fraud.[6] With the increasing willingness of the circuits to interpret the SLUSA broadly and the growing amount of pandemic-related securities litigation, there may be more opportunities for the Supreme Court to finally provide clarity on this issue. Continue reading

Homes Compose the Community: Extend the Community Caretaking Exception to Homes

Kristyn Couvillion

I. Background

A fundamental right secured by the Bill of Rights is the right of individuals to be free of unreasonable governmental searches and seizures. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

Throughout Fourth Amendment jurisprudence, the U.S. Supreme Court has established a reasonableness standard. Courts apply a reasonableness standard when limiting the Fourth Amendment. When an exception to the Fourth Amendment is properly met, law enforcement can conduct a warrantless search or seizure. Some notable exceptions justifying warrantless searches and seizures are exigent circumstances, search incident to arrest, plain view, and consent.[2] Continue reading

Burdens, Benefits, or Both? The Impact of Chief Justice Roberts’s June Medical Concurrence on Courts’ Analyses of Abortion Regulations

Benjamin M. Parks

I. Introduction

In 2014, the Louisiana Legislature passed Act 620, or Louisiana’s Unsafe Abortion Protection Act.[1] The law’s basic requirement was that any physician providing abortions in the State of Louisiana had to obtain admitting privileges at a hospital within 30 miles of the location where that doctor performed abortions.[2] Act 620 defined “admitting privileges” as being a member “of the medical staff of a hospital” and having “the ability to admit a patient and to provide diagnostic and surgical services to such patient.”[3] Those who offered abortion services without admitting privileges could face up to $4,000 in fines for each violation.[4] Like most abortion regulations, the Act was not without controversy.[5] Opponents of the Act, including the Center for Reproductive Rights, characterized the law as a way for the State of Louisiana to restrict access to abortion[6] because abortion providers who could not obtain admitting privileges would be required to shutter their clinics.[7] Proponents of the Act argued that it protected women’s health and safety by ensuring that abortion-providing physicians with admitting privileges could treat their patients in hospitals should any complications arise from an abortion procedure.[8] Continue reading