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Kline Professors Discuss Protest Rights and Political Power during ‘After George Floyd’ Event

Photo of George Floyd poster by Lorie Shaull

June 18, 2020

On June 15, Kline School of Law students organized a Q&A session titled “After George Floyd: Racism, Human Rights, and Protest in America.” Professors Tabatha Abu El-Haj, Bret Asbury, David Cohen, Wendy Greene, and Rachel López answered student questions on protest rights, defunding the police, and what students can do to create change in this pivotal moment. Rising 3L Katie Princivalle moderated the event with Director of Diversity, Inclusion & Student Belonging Danielle Boardley.   

Opening the event, Abu El-Haj and López discussed protesters’ rights and state power in relation to recent protests responding to the murder of several black individuals at the hands of the police. Regarding the treatment of protesters in Philadelphia, Abu El-Haj discussed the gap between the enumerated protest rights and the recognition of these rights in practice, due to the range of permissible regulation of protests, including permit requirements, and the discretion it confers to police.

Police discretion, which is built into regulating protest rights, results in these rights often being narrowly construed in practice. Abu El-Haj suggested that such discretion was used when police disbanded protesters on Philadelphia’s Highway 676, but she didn’t condone the use or lawfulness of teargas to do so. The Philadelphia police may have viewed protesters entering the highway as beyond what they could reasonably allow in an unpermitted protest, according to Abu El-Haj.

López, who has been advising several individuals who attended the protest on Highway 676, discussed possible recourse that the United Nations could take in response to these actions. However, she admitted that international legal bodies often do not have teeth within the U.S.

Notably, the Highway 676 protesters whom López has been counseling have focused their efforts on bringing their story into the public arena, rather than seeking legal redress. For López, this indicates that the protesters are grappling with large moral questions regarding police power and may be doubtful that legal institutions can provide sufficient redress, which indicates the eroding of American democracy.

López expanded on this concern by outlining the ways in which notions of American exceptionalism have led the U.S. to opt out of being constrained by international law. Without this constraint, America can participate in contradictory behavior, like using teargas on American citizens while also sanctioning the selling of teargas to China for fear of how China would use teargas on protesters in Hong Kong. Additionally, American exceptionalism has led the U.S. to exempt itself from oversight by international legal bodies. Without this oversight and with an increasingly polarized Congress, López expressed concern for who could provide such oversight and how having little oversight could burden American democracy.

As distrust in American institutions, including the police, increases, calls to defund the police are becoming widespread. Asbury, questioning the rhetorical value of the slogan “defund the police,” discussed the potential obfuscation the slogan provokes as well as how inflammatory the slogan has been.

Asbury also noted that changes to existing police protection laws would be slow, if not impossible. Qualified immunity, the provision that protects police from civil liability, will likely not be changed, because there is an incentive for police to have legal protections in order to allow them to do their job. However, Asbury argued that even if these laws are unlikely to change, there must be a balance in providing these protections while ensuring that police do not abuse their power.

Cohen noted that while people using the term “defund the police” have varied interpretations on what police reform or abolition means, the movement is important because it furthers a needed conversation on police power. He outlined the ways in which the police union is unique in its culture. Specifically, unlike other unions, police unions almost always defend any members accused of misconduct.

Abu El-Haj suggested that the political power of police unions will not change on its own. Redistribution of power, she said, will only occur when advocates of anti-racist reforms are equally organized, meaning that “individual activism and opposition to the police needs to be channeled into organizations that can provide a political counterweight to the power of the police unions.”

The event ended with several professors offering advice for law students on what they can do in this pivotal moment of change. López encouraged students not to limit their imagination when it comes to the possible changes that could occur in this moment. She advised students to allow their imagined futures to go beyond what they have experienced or seen in the world around them.

Cohen encouraged students to take up campus and local social and political activism. He stated that students shouldn’t be afraid to make campus leadership uncomfortable with their demands for justice.

Greene encouraged students to be “persistent and insistent” in their individual justice-seeking actions. She noted that while students are witnessing the limits of the law in dismantling systemic racism and are likely feeling dismayed, students must recognize that “every little step towards equity and justice is needed and valued.”

Photo of George Floyd poster by Lorie Shaull