The Year So Far

Volume 6 • Issue 6 • September/October 2020
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Rallying Around Racial Justice

The ACLU of Louisiana’s Justice Lab

In the aftermath of George Floyd’s death, information regarding the officer responsible, Derek Chauvin, revealed a troubled history of alleged misconduct and violence. The Minneapolis Police Department noted that of the roughly 18 prior complaints that had been filed against Chauvin through its Internal Affairs division, all but two held the status “Closed with No Discipline.” The discipline resulting from the remaining two complaints amounted to letters of reprimand.

Chauvin now stands accused of second-degree murder, among other charges, and his fellow officers who were present and did not intervene face charges of aiding and abetting. While the case is ongoing and any formal verdict is likely months, if not years, away, one thing is crystal clear: the video recording of the incident—in addition to subsequent incidents in recent months such as the shooting of Jacob Blake in Kenosha, Wisconsin, and an estimated two dozen more police killings of unarmed individuals (as of September 16, 2020)—has created sustained national and international attention and outrage. In recent days, weeks, and months, the United States has seen protest movements in virtually every state with statements and demands for justice ranging from “Black Lives Matter” to “End Systemic Racism” to “Defund the Police” to “Hands Up, Don’t Shoot” to “I Can’t Breathe.” What is more, these calls to action are taking place in the context of a global pandemic that has itself not only exposed long-festering racial disparities but led to new manifestations associated with the virus. The Centers for Disease Control and Prevention data shows higher rates of COVID-19 hospitalization for individuals identifying as Asian, non-Hispanic (1.3 times greater); Hispanic or Latino (4.6 times greater); Black or African American, non-Hispanic (4.7 times greater); and American Indian or Alaska Native, non-Hispanic (5.3 times greater) than for non-Hispanic white individuals.

The ACLU of Louisiana Justice Lab is a full-court-press litigation strategy, sustained by pooling resources from across the profession, that takes police to court over as many alleged abuses as possible.

Calls for reform have varied widely, in both the problems identified and the solutions recommended. The legal profession has had a long history operating in this space, in no small part due to lawyers themselves being central players in the criminal justice process, whether as judges, district attorneys, attorneys general, defense counsel, and even policymakers. Law schools, too, have dedicated academic and clinical space to advance scholarship and make lasting impacts, such as the University of Chicago Law’s Civil Rights and Police Accountability Project and New York University Law’s Center on Race, Inequality, and the Law. Many nonprofits have been in the trenches for decades, such as the American Civil Liberties Union (ACLU), the NAACP Legal Defense Fund, the National Lawyers Guild’s National Police Accountability Project, and the National Association for Civilian Oversight of Law Enforcement, with newer organizations like Campaign Zero and the Movement for Black Lives forming around the intersection of policing and justice in recent years. Meanwhile, law firms have long engaged in pro bono efforts, many of which have become increasingly systematic in recent decades. In short, many across the legal community have done important work around these issues for years.

Granting this sustained engagement, this summer has seen a new wave of action, including the establishment of many new initiatives geared specifically toward addressing issues of systemic racism (for more, see “The Year So Far”). One embodiment of the profession’s more recent response to calls for racial justice in policing is the ACLU of Louisiana’s Justice Lab. At its core, the Justice Lab is a full-court-press litigation strategy, sustained by pooling resources from across the profession, that takes police to court over as many alleged abuses as possible. Many of these cases might never otherwise see the inside of a courtroom for lack of resources and other disincentives, which is precisely the point, explains Nora Ahmed, legal director of the ACLU of Louisiana and the driving force behind the Justice Lab. “A big part of the problem is that so many of these racial harassment cases—what you might call the ‘driving while black’ cases that people experience every day—are just not addressed because it’s not economical to do so,” she says. Now, the ACLU of Louisiana is trying to keep those cases from falling through the cracks.

Alanah Odoms leads the ACLU of Louisiana as executive director. Odoms, who in 2018 became the first black woman to head the organization in its 65-year history, has worked to establish the ACLU of Louisiana as a racial justice organization committed to protecting and defending the rights of the most vulnerable Louisianans. “We will carry on our legacy of defending the Constitution and Bill of Rights, with the new charge to refract this work through the lens of racial and gender equity,” she says.

Odoms has committed her legal career to the causes of racial justice and ending mass incarceration in Louisiana, first as a lawyer at the District Attorney’s Office in New Orleans and later as the deputy general counsel of the Louisiana Supreme Court. As she reflects on her time as a lawyer, Odoms says she learned that outcomes in the criminal legal system are too often driven by race and wealth and not by guilt or innocence. “Racial disparities abound in our prisons and jails, and in statistics concerning police violence and killings in the state of Louisiana,” she explains. “Louisiana is fertile ground for an initiative the size and scale of Justice Lab because we are ground zero for injustices in the criminal legal system.”

“When it comes to social justice, there is a divide among lawyers,” says Nora Ahmed, legal director of the ACLU of Louisiana.

Currently, the Justice Lab is a single-state pilot with a broader goal of modeling potential nationwide strategies. And its pilot state was far from a random choice—Louisiana has been reported to have the highest number of full-time law enforcement employees per capita of any state, the highest per capita imprisonment rate of any state, and laws in place that remove barriers for police to expunge certain alleged violations. In other words, the state presents a particularly challenging environment for police reform. The Justice Lab is an effort to find what works in that type of environment in the hopes that successful strategies will carry over into other, arguably less dire contexts.

In this article, we profile the ACLU of Louisiana’s Justice Lab as one example of how the legal profession is responding in real time to growing demands for justice and social change. While there are many efforts underway to address issues of police accountability, racial justice, and social justice more broadly, the Justice Lab offers an evolving window into how the legal profession is attempting to develop and execute strategies of change. Indeed, the project has only just begun, officially launching in June 2020. But its broad coalition of legal talent is already noteworthy, with dozens of major law firms, corporations, and law school clinics already pledged to participate. The question we ask in this article is how did this initiative organize and gain purchase from stakeholders across the profession? As we do in “The Year So Far,” we aim to capture a moment (and, in this case, a movement) while remaining cognizant of the dynamic nature of both the crisis and the responses to it. We explore this example of legal practitioners coming together to advance social justice in its early stages to examine how it put the pieces together and got off the ground.

Bridging the divide

When Ahmed enrolled in her J.D. program at McGill University’s Faculty of Law in 2008, her driving motivation was to affect change for marginalized communities. She left a job she loved—a teacher in the South Bronx—because she saw an opportunity as a lawyer to make a big impact. As the global financial crisis set in and began to show its effects, however, Ahmed saw prospects in her dream civil rights career evaporate. Instead, she got her start as a Big Law lawyer, joining the ranks of lawyers at Paul, Weiss as a litigator, where she learned hard-nosed legal skills and gained insight into the influence and resources of large law firms. During her time with Paul, Weiss, Ahmed was an active participant in the firm’s pro bono program—she was recently one of the lawyers leading the firm’s pro bono COVID-19 Legal Hotline—but after several years with the firm she decided it was time to pursue the type of legal career she envisioned from the start. In June 2020, Ahmed joined the ACLU of Louisiana as legal director and founder of the Justice Lab.

One might be tempted to frame Ahmed’s stop in Big Law as a deviation from her public-interest-oriented career aspirations. As John Bliss’ work has revealed, “[R]esearchers have consistently shown that many incoming law students express preferences for nonprofit and government jobs but then experience a ‘public-interest drift’ during law school, whereby they instead decide to pursue positions in private law firms.” And yet, it was due in no small part to that Big Law experience that Ahmed was ideally suited to spearhead the ACLU of Louisiana’s Justice Lab. Indeed, Ahmed’s Big Law background is evident of many of the Justice Lab’s most innovative methodologies.

“Louisiana is fertile ground for an initiative the size and scale of Justice Lab,” says Alanah Odoms, executive director of the ACLU of Louisiana.

“When it comes to social justice, there is a divide among lawyers,” Ahmed says. “On the one side, you’ve got social justice lawyers who say, ‘We decided to do this work from the start and we know best how to do it.’ On the other side, you have Big Law lawyers who say, ‘We try the hardest, most complex cases there are, and we know best how to do this work.’” Those in the public-interest world often criticize Big Law’s pro bono strategies as being more about developing their own talent than about notching real victories for the causes they work to advance. Those in Big Law often argue that these causes are often severely lacking in the resources of a big firm—resources that could make or break those victories. With a foot firmly in each world, however, Ahmed saw an opportunity. “I figured, if there was a way for us to bring these worlds together, we could potentially do something revolutionary,” she says. Ahmed not only understood how a Big Law firm thinks about its pro bono and social justice efforts but also knew how Big Law associates spent their time and what motivated them, having so recently been one herself. Her pitch to Odoms at the ACLU of Louisiana: let’s put them to work.

Odoms, having spent three years as a civil litigator in a law firm, knew Ahmed had identified a real opportunity. “As a litigator, I’d seen the vast resources these large firms could bring to bear, and as a Black woman, I was acutely aware of the fact that these resources have not traditionally been available in Black communities,” she says. “Justice Lab is a unique opportunity to direct these resources to help empower communities of color and hold police accountable.”

A coalition of the willing

Ahmed started with the law firms, formulating her pitch from her still-recent big law experience. She put together a fact sheet with bullet points and clear action items outlining how firms would serve as critical players to “spearhead challenges to racially-motivated stops and seizures by bringing individual 42 U.S.C. § 1983 actions under the Fourth and Fourteenth Amendments and any other applicable laws.” Then, as she was formulating her ideas for the Justice Lab, George Floyd was killed.

“Trials are complicated, but law school clinics are certainly equipped to help appeal unfavorable decisions that come out of our trial work,” says Ahmed.

In the immediate aftermath, as law firms began to release statements in support of racial justice over the summer (for more, see “The Year So Far”), Ahmed and her team promptly reached out with an opportunity for them to take concrete action. “We started with the Vault 100, then we went to the Vault 200, and then we went to plaintiff’s attorneys,” Ahmed recounts. “I might have pitched to 300 firms at this point.” As of this writing, more than 40 major law firms had signed on to devote some of their legal resources to the fight. Ahmed notes that her nearly decadelong experience at a major law firm meant she understood the often-immense resources they had at their disposal, particularly in terms of talent and sheer numbers. The goal was to mobilize these resources in a coordinated way.

As the coalition of law firms grew, Ahmed saw an opportunity to involve summer associates. “We knew that summers were coming in June,” she says. What’s more, in the midst of the ongoing COVID-19 crisis, many firms were left scrambling to shore up their summer associate programs—with many moving them entirely online (see “The Year So Far”). And as this was, again, taking place after major law firms across the country had just strongly affirmed their commitment to fighting for racial justice, many were receptive to getting their summer associates more involved in pro bono work. For Ahmed, this was a chance to help develop firms’ collective understanding of police-accountability issues as well as their capacity to advance the Justice Lab’s goals. She explains:

They would ask, “Do you have research projects you would like us to have our summers do?” And I said, “Yeah, I have a few, but what I would really like to know is what’s your dream repository of research you could have access to before you started a case?” Every time I had a call with a firm, I learned what they wanted. “Do you have a guide on all the federal court judges in Louisiana?” “Do you have model pleadings?” “Do you have a FOIA strategy?” And so I now have 50 projects that firms are working on just by asking them what they need to do their part better. The things they asked for became research assignments, and those assignments were taken up often by other firms. So you have this beautiful synchronicity where when one firm said they had a question, we could then go to another firm who said, “We’ll do that research.” And now all of those projects, which were assigned early June, they’re all are coming in.

With all the interest among summer associates, it was not such a leap to start reaching out to law school clinics—and indeed 18 law school clinical programs have already joined. “When we thought about how we could involve law students beyond summer associate programs, the idea was to put them to work on the appellate front,” Ahmed explains. “Trials are complicated, but clinics are certainly equipped to help appeal unfavorable decisions that come out of our trial work.”

Meanwhile, some major corporations—companies like Amazon and Facebook—caught wind of what the Justice Lab was doing and wanted to add their strength. “What initially happened was we had some law firms say, ‘Our clients want to be a part of this. Can they litigate these cases with us?’” Ahmed recalls. “And when anyone says they want to help, I want to find a way for them to help. We’re going with a coalition of the willing and getting as much done as we can. And so we planned to train them up as intake volunteers.”

Many of these new partners have spoken about their motivations for joining the fight and working with the Justice Lab. “I’m excited to get started, and to help do justice and give victims the support that they need and the legal remedies they need,” says Jahmy Graham, a partner at Nelson Mullins, one of many lawyers quoted in a recent article in the American Lawyer about their law firms’ respective involvement with the program. “As a law firm, we are participants in the system of justice in this country,” says Daralyn Durie, founding partner of Durie Tangri, in a June press release by the ACLU of Louisiana announcing the early formation of the broad Big Law coalition. “All too often, for Black and Brown communities, that system is one of injustice. Condemning racism is the easy part. It is also not enough. We must act.”

To maximize the impact of their efforts, the ACLU of Louisiana had to ensure that local lawyers, social justice lawyers, and community organizations from throughout Louisiana were meaningfully involved.

Law schools, and in particular law school clinical programs, have likewise signaled enthusiasm to advance the Justice Lab’s goals. “I hope that this will be a model used elsewhere around the country,” says Berkeley Law dean Erwin Chemerinsky, quoted in that same American Lawyer article, who has agreed to offer multiple training sessions on constitutional law to Justice Lab partners. “I am thrilled to lend my knowledge about civil rights litigation to be part of this.” In a July press release by the ACLU of Louisiana, a number of clinical leaders voiced their support for the program, such as Deborah Archer, director of NYU Law’s Civil Rights Clinic. “Today, every person in America is called on to take a stand in America’s centuries-long struggle to be the nation we aspire to be, and our students are ready to join that fight,” Archer says. While many of these partners may be new to the state—and in the case of students in particular, new to the practice of law—there is notable enthusiasm within this newly formed coalition.

Top-down or from the ground up?

There remains, however, a crucial piece missing from the coalition described thus far, and it goes back to the divide Ahmed outlines above. To maximize the impact of their efforts—and to ensure they were making an impact where it was needed—the ACLU of Louisiana had to ensure that local lawyers, social justice lawyers, and community organizations from throughout Louisiana were meaningfully involved. That these groups were not involved from the inception of the Justice Lab meant Ahmed and her team already had ground to make up. “The one thing I wish we’d done differently was reach out to each of these constituencies in a more meaningful way,” acknowledges Ahmed. “And while we did do some early outreach to local nonprofits and community organizers, we learned it wasn’t enough to send out an email. We needed to be more proactive and meet people where they were. We needed to show respect for their stature and their history with this work.”

Connecting with these community stakeholders was an opportunity to see the Justice Lab from a whole new perspective—one grounded in local priorities and concerns. So Ahmed and her team organized community fora to listen to those local voices, which prompted them to develop a mental health component to the initiative and renewed focus on community outreach. “The number one fear was you’re going to create bad law,” Ahmed explains. “This is a difficult area of law, and there was a fear that you’re going to hand it over to these outside lawyers who don’t care about us.” As Ahmed notes, the trick moving forward will be to involve local groups in a way that leverages their knowledge and capacities in the state’s various localities as well as builds trust between them and the outside lawyers coming in.

Putting it together and getting off the ground

Between all these actors—law firms, law schools, corporations, nonprofits, and other community stakeholders, each of which contains its own diverse set of priorities and approaches—the Justice Lab’s strategy, execution, and adaptability are paramount. So how do all these pieces fit together?

At the heart of its function, the Justice Lab is about litigation at a massive scale.

By signing on to be a part of the Justice Lab, each organization is accepting a certain role and pledging to take specific steps, the combination of which, Ahmed hopes, will create an impactful, self-sustaining ecosystem of action. When law firms join, they agree to help challenge alleged police abuses in court, pledging to take on around 10 cases at minimum. When law school clinics join, they are expected to handle between 10 and 30 appeals. When someone agrees to serve as an intake volunteer, they are expected to spend between 10 and 15 hours on each case they take on. Intake volunteers might come from law firms, corporations, or nonprofits, and often they are transactional lawyers looking to contribute to the effort while their litigation colleagues deliver in the courtroom. When someone joins as a community partner—which is not necessarily a legal role—they might help out-of-state lawyers better understand their local context, speak at events, or, depending on their background, act as a referral for people coming to the Justice Lab who might be helped by their respective nonlegal services.

All these roles fit within a process—one that is continually updated according to what works. Ahmed and her team quickly learned, for example, that their initial complaint form needed to be revamped. “We didn’t get a lot of people filling in our original form because, as we learned, it was just too long,” admits Ahmed. “When we made the complaint form easier, we started to see more complaints coming in.” And once a complaint form comes in, the process begins. Ahmed explains:

These forms provide us with the contact information we need. Our intake and investigations paralegal calls them back, lets them know we don’t represent them, lets them know that we’re willing to send them to an intake volunteer who will hear their story but that they also don’t represent them. If we all agree to move on to intake, we email our intake listserv. In dyads or triads, our volunteers do intake, lawyers and nonlawyers but always one lawyer on a team. This produces a fill-in-the-blank memo that comes back to us here at the ACLU. We look at the memo, and we make a determination of whether these are cases that can go to law firms, whether they fit within the statute of limitations, or whether they are instances where we would offer other forms of support that have been previewed for them in the intake process, such as helping them prepare to speak before the legislature or at meetings with police officials.

When law firms join, they agree to help challenge alleged police abuses in court, pledging to take on around 10 cases at minimum. When law school clinics join, they are expected to handle between 10 and 30 appeals.

While there are clear roles that lend themselves to professionals and individuals with particular backgrounds, Ahmed’s all-hands-on-deck approach means no one is left out. If someone does not fit neatly in the Justice Lab’s apparatus, she will find a way for them to contribute. “I’ve had people from all over jump onboard,” Ahmed says. She continues:

I had a young woman who was a paralegal at my old firm. She jumped onboard. I had a young woman who was going to start at the University of Arkansas who jumped onboard as well. I’ve got a criminal law professor at Howard who wanted his students involved on the trial court level, so I partnered him up with two of my solo practitioners and they joined together to bring a case. Again, if anyone comes to me and says they want to be involved, I’ll find a place for them to be involved.

To get this whole operation off the ground, the Justice Lab has scheduled and begun to offer trainings and tutorials around operation-specific issues like the intake process, broader issues related to the work like antibias training, as well as sessions devoted to discrete, contextualized legal issues like Section 1983 Litigation in Louisiana: Nuts & Bolts and Criminal Justice Issues and the Public Defender’s Office in East Baton Rouge. These early trainings serve to orient partners to the structure and purpose of the Justice Lab and familiarize lawyers with the legal terrain.

The Justice Lab has requested its law firm teams be “be at least 50% people of color, 50% women, and 30% people who identify as LGBTQ+.”

At the heart of its function, the Justice Lab is about litigation at a massive scale. Ahmed notes that while changes in, for example, police policies and training may ultimately play roles in solving the problem, they alone have yet to create systemic change. She therefore stresses the power of litigation as a tool—particularly Section 1983 cases—to force information to come to light that might never have otherwise. “Think about the medical malpractice context,” Ahmed suggests. She elaborates:

Before we started using tort law and negligence to tell doctors to be more careful about whether a sponge ended up in someone’s body, we didn’t necessarily have the systemic reforms in hospitals already in place. That came after. And that’s what we are trying to do through the Justice Lab—systemic reform. We want to make clear that if you engage in unconstitutional behavior, we’ll hear about it and we’ll sue you. Anyone, anytime.

This is why partner law firms are asked to take on so many cases. Scale is the goal, and the firms have raw person power. Moreover, while these cases are often uneconomical—Ahmed notes that she has spoken with practitioners who turn down nine out of 10 cases for this reason—law firms again have the resources to help. As the Justice Lab puts it, “[W]e will initiate a social media call for up to 1,000 plaintiffs in Louisiana to come forward and challenge alleged unconstitutional stops and seizures that occurred within the State in the past nine months.” Unsurprisingly, when asked what she is most excited about in the short term, Ahmed is quick to answer: getting to court.

Ahmed acknowledges, however, that there are instances where legal action may not be an available solution. For these cases, they intend to turn to storytelling. “In addition to all these other training sessions we have going, we’ll begin running storytelling training in September,” says Ahmed. “We need to be able to amplify messages and create social change with the stories that are coming our way but that go beyond the statute of limitations or where people are honestly afraid of retaliation. Storytelling is going to be a big piece of that.” In the Justice Lab’s new one-pager on its storytelling process for nonlitigable cases, they note that “[i]n addition to catalyzing social change, storytelling aids healing—as recovery often begins with reconstructing the impact of trauma. Finding a personal narrative can help bring self‑awareness, closure, and a sense of connection with the community.”

Now that the results of dozens of summer research projects are coming in, and now that lawyers have had a chance to catch some trainings and meet with partners, the Justice Lab is entering a new phase of its operation. The ACLU of Louisiana put out a call for anyone who has had “negative race-based interactions with the police” at any point from May 1, 2020, onward to fill out an intake form or otherwise contact the Justice Lab. The people have been recruited, the structures have been put in place, knowledge has been collected, and the intake process is underway. The only thing left now is to flood the courts and find other ways to tell survivors’ stories.

“If we want to really change the face of laws in society,” says Ahmed, “we need to invite everyone to the table in earnest.”

Taking note

It is important to emphasize that much of the Justice Lab’s story still lies ahead. Indeed, the coming months are likely to be very telling for the project’s future. “We have a number of big cases that recently came to us, and I know I’m very excited to see those cases get filed,” says Ahmed. And yet, the cases themselves are only one aspect to what the Justice Lab is trying to accomplish. Ahmed sees the convening efforts of the Justice Lab as one way toward bridging the divide she sees between the private- and public-interest sectors of the legal profession. “The perception has often been there’s a barrier here,” she says. “But if we want to really change the face of laws in society, we need to invite everyone to the table in earnest.” And, beyond bridging the public–private divide, that also means emphasizing and modeling diversity within the profession—for its part, the Justice Lab has requested its law firm teams be “be at least 50% people of color, 50% women, and 30% people who identify as LGBTQ+.”

We are the midst of a moment and can only offer an imperfect snapshot of the changes underway. In other words, this chapter has not yet been written. It will not be written for some time. For now, however, we are taking notes. And while it remains too early to tell what sort of impact the Justice Lab will make in the end, the racial justice effort is already noteworthy given the large and diverse array of legal practitioners it has managed to fit under its tent—as well as for the size and scope of its ambitions. Like many of the notes we make in this issue, we hope to revisit this story in the future.

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The Year So Far Volume 6 • Issue 6 • September/October 2020