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93rd General Assembly: A preview into hot topics

By Lindsey Bailey French, AAC Legal Counsel

The 93rd General Assembly will convene on Jan. 11, 2021, in what promises to be an interesting session for various reasons. In addition to adopting new procedures and adapting to the unknown in response to COVID-19, there are some hot topics that the General Assembly will consider in this session. Three of these will be of particular concern to county law enforcement.

Hate Crimes

Sen. Jim Hendren has pre-filed SB3, a piece of proposed legislation establishing certain hate crimes in Arkansas. SB3 is cosponsored by 14 House Democrats and two House Republicans and is also supported by Gov. Asa Hutchinson and Attorney General Leslie Rutledge. According to Hendren, 47 other states have laws “that enhance penalties for crimes motivated by hatred of someone’s race, gender, religion, sexual orientation, status in Armed Forces, homelessness, or gender identity.” Arkansas, along with South Carolina and Wyoming, does not.

SB3 would create a sentence enhancement for qualifying crimes where the victim was targeted due to one of the qualifying attributes. If the state believes that one of the qualifying attributes were a substantial motive in the commission of the crime, then the state may seek to have an enhanced penalty applied. Under SB3, if the court finds that the crime was committed beyond a reasonable doubt because of one of the qualifying victim attributes, the sentence, whether imprisonment, fine, probation, or other, may be enhanced by not more than 20 percent.

Proponents of the bill say the legislation is long overdue. An FBI report shows that hate crimes across the nation in 2019 were at the highest point in a decade with a record-breaking 51 fatal attacks. Analysts also assert that hate crimes tend to increase during periods of heated political climate, and in conjunction with federal elections in particular. It is also seen as widely pro-business legislation and supported by Wal-Mart, Tyson, and the State Chamber of Commerce, since 47 states have similar laws in place, and those that do not may be seen as non-inclusive and deter potential employers from locating there.

SB3 will not be an easy lift for its sponsors, as similar bills have failed in Arkansas in the past, largely due to built-in protections of individuals due to their sexual identity and orientation. The bill is still opposed by some conservatives, and alternative proposals are expected to be filed.

Stand Your Ground

Another hot topic that is not a new one for the Arkansas General Assembly that will see a resurgence in the 2021 session is “stand your ground.” The most notable attempt at recent “stand your ground” legislation in Arkansas was SB484 brought by Sen. Bob Ballinger in the 2019 general session. According to a recent post on the Senator’s Facebook page, 36 states are “stand-your-ground states,” with 27 of those having passed legislation, and the remaining eight states having caselaw to support the position. Although widely supported among Republican lawmakers, the bill failed to pass in the Senate Judiciary Committee in that session.

Republican lawmakers have vowed to bring “stand your ground” legislation back in 2021. In 2019, the Governor said he was “hesitant” to change the law, because he thought Arkansas’ self-defense laws were strong as is, and many law enforcement organizations joined him with those concerns. Currently in Arkansas, one has the duty to retreat when they can do so safely unless they are in their own home. SB484 was amended four times in the 2019 session but was not able to pass out of committee before the session was adjourned.

Proponents of “stand your ground” reform believe the current requirement to retreat before engaging in deadly force, if they can do so safely, is impractical and dangerous. They say this requirement unreasonably prevents a person from being able to protect themselves or their loved ones when faced with danger. Ballinger’s bill would have not required a person to retreat, regardless of their location, before resorting to deadly force if: they were in a place legally, had reasonable belief they were in imminent danger of death or serious physical injury, had not provoked their adversary, and had not engaged in criminal activity.

Opponents of “stand your ground” laws believe they increase or encourage gun violence in an already turbulent political climate. They believe the current duty to retreat if one can safely do so is important and saves lives by preventing encounters involving deadly force. Some opponents cite studies that have found that victims of stand your ground-justified altercations are disproportionately people of color, while others fear it may lead people to be more likely to “take matters into their own hands” and escalate situations toward violence unnecessarily.

Qualified Immunity

Under Arkansas law, public officers, including law enforcement officers, are entitled to a defense of “qualified immunity.” Qualified immunity for county public officers and law enforcement is found in Ark. Code Ann. §21-9-301. The current state of qualified immunity for law enforcement officers was clearly stated in May 2020 by Judge Rita Gruber for the Arkansas Court of Appeals, in Elliott v. Morgan, successfully argued by AAC Attorney Colin Jorgensen.

Qualified immunity in Arkansas makes public officials “immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.” This prevents a person from being able to sue a public officer in their personal capacity when they are carrying out the necessary duties of their office. Qualified immunity is particularly under the microscope right now nationally as it applies to law enforcement officers, especially the widely publicized bad actors wearing a badge. As the Court pointed out in Elliott, the purpose of qualified immunity is “to allow public officers to carry out their duties as they think right, rather than acting out of fear for their own personal fortunes.” Law enforcement officers are entitled to the defense of qualified immunity in a lawsuit against them in their individual capacity, unless they “violate a clearly established right of which a reasonable person would know.”

In order to overcome this defense, a plaintiff must prove three things: the officer committed a constitutional violation, the constitutional right that was violated was clearly established, and there was a genuine issue of fact as to whether the officer knew they were violating a clearly-established constitutional right. If an officer’s actions are objectively reasonable, or if officers of reasonable competence could disagree on whether the action was appropriate, then the courts will rule in favor of qualified immunity for the officer. This test is often applied to determine if an officer reasonably had probable cause to make an arrest or to respond with deadly or non-lethal force.

In Arkansas, pursuant to Ark. Code Ann. §5-2-610, a law enforcement officer is justified in the use of non-deadly force or the threat of deadly force if: 1) they reasonably believe the use of force is necessary to either make an arrest or prevent the escape of a lawfully arrested person, or 2) to protect himself or a third person from the use of force or perceived imminent use of force while making an arrest or preventing an escape of an arrestee. Under the same law, a law enforcement officer is justified in the use of deadly force if the officer reasonably believes the use of deadly force is necessary to: 1) make an arrest or prevent an escape of an arrestee that the officer believes has committed or attempted to commit a felony and is armed and dangerous; or 2) defend himself or a third person from what the officer reasonably believes is the use or imminent use of deadly force. Like the qualified immunity standard, the standard for the justified use of deadly or non-lethal force largely hinges on the circumstances as reasonably perceived by the law enforcement officer.

Amid recent headlines featuring claims of police brutality, sometimes ending in death, some lawmakers locally and nationwide have criticized qualified immunity for law enforcement officers, saying it shields bad actors from lawsuits and prevents victims from seeking justice. They claim the standards adopted by the courts in reviewing qualified immunity cases have essentially broadened the protection to total immunity from lawsuits against law enforcement officers. While some would seek to abolish qualified immunity altogether, others would be satisfied with a compromise, narrowing the scope of what qualified immunity protects.

However, law enforcement officers claim eroding the qualified immunity doctrine would be detrimental to the profession. Underpaid, underappreciated, and often under attack by the media, law enforcement officers are already hard to recruit, and even more difficult to retain. Removing qualified immunity and subjecting these officers to potential lawsuits against them for making difficult, on-the-spot decisions they must navigate on a daily basis would be a deterrent to entering the profession and would invite frivolous lawsuits most jurisdictions would not have the resources to constantly defend. Law enforcement agencies across the state will have to convince Arkansas lawmakers that policy reforms, greater transparency through dashboard and body cameras, and improving relationships with their communities are better ways to prevent controversial altercations between the police and the public than to abolish qualified immunity.

In conclusion, these topics are sure to make headlines in the upcoming legislative session and evoke passionate debates from both sides. Republicans currently hold a super-majority in both chambers and tend to favor policies that protect both law enforcement officers and gunowners’ rights. On the other hand, pre-filed hate crimes legislation has seen bipartisan support. Ultimately, these three issues, along with other hot topics and the usual difficulties in budgeting for state needs with limited revenues, will be up to the General Assembly to decide.

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