Amercian law makes it far too difficult to hold police officers and other officials accountable when they violate the rights of the people they are sworn to protect, Devon Jacob said.
“The system is definitely broken,” he said.
Jacob is a nationally known civil rights lawyer who has worked on some of the most prominent cases in recent history. In partnership with attorney Benjamin Crump, he has represented the families of George Floyd, Christian Hall and Hunter Brittain, among others. In 2013, he founded his own firm, Jacob Litigation, based in Mechanicsburg.
On Tuesday, he was the featured guest at a “fireside chat” at the Lancaster Bar Association, titled “Why Juneteenth Should Matter to Attorneys: A Conversation on Civil Rights and an Examination of Racism in the U.S. Legal System.” Bar Association President Bernard Ilkhanoff served as moderator.
Jacob worked as a firefighter, 911 dispatcher and police officer before becoming an attorney. He had sworn never to be a lawyer, and especially not a plaintiff’s attorney, but one step led to the next “and here I am,” he said.
He started his legal career as a deputy attorney general in Pennsylvania, defending state police and state corrections in civil rights cases. After Citizens United, things changed, he said: Money began pouring into politics and government, shifting policy.
“The whole system just began to crush the little guy,” he said. “… It was no longer a fair system. So I decided it’s time to gravitate to the other side.”
Ilkhanoff asked if high profile cases like George Floyd’s have prompted reform. No, Jacob said, nor does he expect meaningful change. The powerful are always committed to staying in power, he said, adding: “Maybe I’m a pessimist.”
Law enforcement leaders who seek change often struggle. Jacob described being approached privately by a police chief who had tried unsuccessfully to have his department implement body cameras and secure accreditation; at the chief’s request, Jacob insisted on both as part of a settlement agreement.
His recommendation for reform is twofold: Abolish qualified immunity and require police officers to carry private malpractice insurance, like doctors and lawyers.
Under qualified immunity, police officers and other government officials can’t be sued for actions they perform on duty unless they’re egregiously wrongful. Proponents say it gives public officials the authority they need to act effectively without having every nuance of their decisions second-guessed.
In practice, egregiously wrongful actions are shielded as effectively as legitimate ones, Jacob said: In one notorious instance, a judge granted qualified immunity to police accused of stealing more than $225,000 in cash and rare coins during a search.
The Supreme Court simply invented qualified immunity, Jacob said, creating an almost insurmountable hurdle that has to be cleared before a misconduct case can be litigated. There are judges who understand the problem, Jacob said, but to fix it, the Supreme Court or Congress has to step in — a highly unlikely step for either institution as things stand today.
Along with eliminating qualified immunity, making police themselves pay for insurance, rather than their departments and municipal governments, would expose officer quality to the marketplace, making bad officers uninsurable over time and weeding them out, Jacob contended.
The U.S. legal system has a long history of injustice, he said: The Constitution countenanced slavery; and when slavery was abolished, Jim Crow politicians used the “punishment clause” of the 13th Amendment to reinstitute practices that were slavery in all but name.
“There is a built-in unfairness,” he said. People need to stand up and fight for justice and equity. There’s an important role for bar associations in that work, he added: To step up and teach the public about their rights and help them find recourse when those protections are violated.
“The further we let our civil rights be eroded, the more dangerous it becomes,” he said.
Lance Greene heads the Bar Association’s Diversity Committee, which organized Tuesday’s event. Juneteenth is a symbol of delayed justice, he said — Maj. Gen. Gordon Granger informed the enslaved people of Galveston, Texas, of an action taken two years earlier with the Emancipation Proclamation — and the ongoing struggle for true equality.
“There are things that we need to continue to strive for,” he said, “… especially in the legal profession, where we actually have the tools to fight back.”
(Editor’s Note: This article has been updated to correct the spelling of Mr. Jacob’s first name.)
