Neil Eggleston and Sarahi Constantine Padilla of Kirkland & Ellis and Ronald Sullivan Jr. and Intisar Rabb, both professors at Harvard Law School, took on the case of former Buffalo police officer Cariol Horne, who was fired less than one year shy of receiving her 20-year pension. The team was recognized as The Am Law Litigation Daily's "Litigators of the Week" for their victory on behalf of Horne.
This week a litigation team led by lawyers from Kirkland & Ellis and Harvard Law School won a ruling from a state court judge in New York awarding Horne back pay and benefits that she had previously been denied in another legal challenge to her firing more than a decade ago.
The ruling comes after last year the Buffalo Common Council adopted a law known as “Cariol’s Law: The Duty to Intervene,” which created a duty for an officer to intervene when observed conduct by a colleague believed “to be clearly beyond that which is objectively reasonable.” The bill also created a cause of action with a 20-year statute of limitations for officers terminated for reporting or intervening to stop the use of excessive force.
“Quoting the words of Dr. Martin Luther King., Jr., ‘the time is always right to do right,’“ wrote Justice Dennis Ward in Tuesday’s decision. “The City of Buffalo has recognized the error and has acknowledged the need to undo an injustice from the past. The legal system can at the very least be the mechanism to help justice prevail, even if belatedly.”
The result, which came the same week evidence closed in the murder trial of Derek Chauvin and as body camera video was released in the fatal shooting of a 13-year-old boy by Chicago police, inspired The Litigation Daily to take the unprecedented step of handing Litigator of the Week honors to four lawyers: Neil Eggleston and Sarahi Constantine Padilla of Kirkland & Ellis and Harvard Law Professor Ronald Sullivan Jr. headed the litigation effort and Professor Intisar Rabb, the lead lawyer interacting with Horne, who acted as her day-to-day lawyer.
Lit Daily: Who was your client and what was at stake?
Neil Eggleston: Our client is Cariol Horne, a veteran City of Buffalo police officer who in 2006 responded to a call to assist a fellow police officer in an arrest. When Cariol arrived, she saw that the other officer had the arrestee in a chokehold. She knew how dangerous chokeholds can be and intervened to save the person being arrested from harm, forcing the officer’s arm off the neck of the arrestee. For this, she was fired from the police force. At the time, she had 19 years of service with the department, and her full pension would have vested in less than a year. The city fired her for doing what we should expect every officer to do—ensure the safety of those in its custody and look out for their fellow officers when they cross a dangerous line.
Sarahi Constantine Padilla: Her first trip to court ended unsuccessfully in 2010. But we believed we could help her find justice, and while this case was specific to Buffalo, New York, we felt it could have national implications given the dialogue in the world about police violence.
Ronald Sullivan: At stake was not only Cariol’s pension and her ability to support herself, but also the message being sent to other officers. She fulfilled her duty to protect and serve, but her first trip to court in 2010, where the court confirmed her termination, created a chilling effect on an officer’s duty to intervene. Despite what the official policy was, a court decision that terminated a fellow officer and denied her a pension did not encourage officers to follow Cariol’s lead—even though her behavior is what the nation was calling for and requiring.
Intisar Rabb: Cariol presented a model for what we the people expect police officers to do when another officer is using excessive force against an unarmed civilian: She intervened to save a life and was punished for it. We thought it imperative that she get not only her pension, but that our laws are correct that led to the injustice of her losing it. At stake was the principle that neither she nor any other police officer should be penalized for recognizing and preserving the humanity of Black men; the law should require it. If we could get justice for Cariol, even after 15 years, we could demonstrate that it is never too late for justice.
When and how did you get brought into this case?
Eggleston: Kirkland partner Kamran Bajwa has a relationship with the Inner-City Muslim Action Network or IMAN, a community group in Chicago that had a connection to Cariol. Kirkland had worked with IMAN before on other pro bono matters so when Kamran asked whether I would like to represent her, I immediately said yes.
When I was White House Counsel to President Obama, one of the matters I supervised was the Task Force on Policing in the 21st Century that the President established after the death of Michael Brown in Ferguson, Missouri. The important work of that Task Force sparked a deep interest in this subject for me. Then came the death of George Floyd in Minneapolis, with its real parallels to Cariol’s situation. She did exactly what we are asking other officers to do and was stripped of her livelihood as a consequence. It was such a compelling case. I wanted to join the team to help her get justice, albeit belatedly. This case had incredible meaning to me and I just knew we could help her. It is what we do at Kirkland—take on tough cases and never stop advocating for our clients, regardless of the challenges and whether they are pro bono or paying clients.
Constantine Padilla: Neil and I were working on another matter and happened to talk about the George Floyd protests right when he got connected to Cariol’s case so he asked if I would be interested in helping. I jumped on it to work more with Neil and also because I found the case so compelling. It felt like something tangible I could do with all the unrest last summer.
Sullivan: I was also brought on by IMAN as part of a joint project with the organization. I had experience from successfully representing the family of Michael Brown in reaching a settlement with the city of Ferguson on a wrongful death claim and was happy to work with the team for justice for Cariol.
Rabb: After doing some work for IMAN, its director Rami Nashashibi called me last summer about a specific case involving Cariol and her bid for justice in what we all wished the police officers in Minnesota had done for George Floyd. I immediately called my longtime collaborator Professor Sullivan, and we agreed on the spot to work on the case, as one that could help correct an egregious wrong for Cariol and set the record straight more broadly. It would be poetic justice that the tragic killing of Floyd and other unarmed Black men and women would give momentum to her cause.
Why was this an important matter for you to work on?
Eggleston: From the first time I heard about Cariol’s situation, I was struck by how different the George Floyd arrest would have turned out if the by-standing officers had acted as Cariol had. If those officers had pushed Officer Derek Chauvin off of Floyd, then he would still be alive today; and Chauvin would never have been charged with murder and those officers watching would not have faced criminal charges.
Constantine Padilla: That’s 100% correct. If Cariol had not acted, the arrestee in her situation could well have died or been seriously harmed. She also had the arresting officer’s back, preventing the arrest from escalating into tragedy.
Rabb: This was important to me because it was a case of impossibility and vulnerability that I believed could turn into the possibility of justice and strength in the process. Cariol a single Black woman who, stripped from her position on the police force, never gave up her fight for justice even though she did not have the resources to mount a successful case in court, and even though the legal system said that all avenues were barred. Here was a chance for us to marshal our collective experience and resources in fighting such cases to advocate for someone who had done the right thing, and just needed the law to recognize it.
Who was on your team and how did you divvy up the work?
Eggleston: Ron and I led the team and handled the arguments in court. Kirkland associate Sarahi Constantine Padilla and partner Hanaa Kaloti wrote the motion papers and regularly consulted with Cariol.
Sullivan: Professor Rabb provided valuable insight into the filings and also worked regularly with Cariol. We worked seamlessly together with the help of William Savino, a Buffalo lawyer who was our local counsel.
How important was “Cariol’s Law: The Duty to Intervene” which was adopted by the Buffalo Common Council last year in the proceedings and in Judge Ward’s ultimate decision?
Constantine Padilla: For those who aren’t aware of the law, the Buffalo Common Council adopted a law in 2020 known as “Cariol’s Law: The Duty to Intervene.” The legislation created a duty to intervene when an officer observes force that he/she “reasonably believes to be clearly beyond that which is objectively reasonable.” The bill also created a cause of action for officers who have been terminated for reporting or intervening to stop the use of excessive force, within the past 20 years from its enactment.
Sullivan: I believe we would have won the matter without the passage of Cariol’s Law, but that certainly helped. The law, passed by the Buffalo Common Council and signed by the Mayor, put the city officially on record agreeing that Cariol had been wrongfully terminated.
Rabb: I too believe we would have won without the passage of Cariol’s Law, and in fact we initially filed the case before the passage of that law. We drew on a theory that Professor Sullivan and I had used to great effect in another case: that judges have the power to retroactively correct a past wrong (called ‘nunc pro tunc’), in the interest of justice. That said, both that theory and Cariol’s Law played out in the judge’s decision. It is testament to the Cariol for Justice group that kept advocating for it until its passage.
Eggleston: We used that honorable concession to great advantage. It also played into Judge Ward’s comment, quoting Dr. Martin Luther King, Jr., that “the time is always right to do right.” It is always an uphill battle getting a court to set aside a previous decision, but here, we didn’t have any new evidence to present to the court. What we did have was a greater understanding about the life and death consequences of arrests that spiral out of control, a concept captured in the court’s opinion.
What position did the city end up taking regarding your client’s petition?
Constantine Padilla: The city was pretty neutral in its position before the court, which we very much appreciated by the legal team. In its filings, the city recounted the procedural history of the matter, which was quite extensive, and then told the court it should reach a fair and just outcome. And we believe that the court did the right thing in the end.
What do you hope that other officers faced with a colleague using excessive force take from this decision?
Sullivan: I hope that police officers will learn from Cariol’s experience, as well as what happened to the officers in the George Floyd matter. It is in the best interests of all of the officers and of the police department when officers intervene to prevent the use of excessive force.
Eggleston: These potentially deadly outcomes can be prevented if officers watch out for each other and help their fellow officers avoid tragic consequences. Standing by and letting these events occur can cost lives. Watching out for fellow officers does not mean blindly supporting everything they do, and hopefully this decision and Cariol’s experience encourages more officers to be more critical and active in intervening in these situations.
How did your client react to the decision? And what was your own reaction?
Rabb: When I reached out to her, Cariol cried tears of relief, joy, and gratitude. It restored faith in the law as an instrument of justice, even when the odds were stacked against her. She was in disbelief, and already looking toward the horizon. I was impressed by her stance that full redress looks like getting her pension back, as this case did, but also making it so no other police officer ever had to go through what she went through and that cities and states should require and laud those officers who intervened to save lives.
Sullivan: Cariol was so happy and couldn’t help but cry because this long legal nightmare had finally reached the right conclusion, even after so many years. Being fired less than a year from receiving her full pension had dramatic effects on her life. She had to take jobs driving a truck and an Uber and was forced to sleep in her car when she didn’t have the money for a roof over her head.
Eggleston: The entire team felt relief that we could help Cariol bring this to an end. We’ve seen several cases involving excessive force by the police that highlight the importance of having officers like Cariol who are willing to step up and do the right thing. But doing the right thing had a catastrophic impact on her life and it took 15 years of hope and strength to reach this resolution.
Constantine Padilla: She never gave up, even when she faced so many roadblocks. I find that so inspiring, particularly as a young Black woman just starting my legal career. Doing what’s right is not always easy. Having determination and belief in yourself become so important.
What will you remember most about handling this case?
Eggleston: The most memorable part of this case is getting the city and the court to recognize that we want all of our police officers to act as Cariol did. There have been too many deaths of mostly men of color during their arrest that could have been prevented if the other officers on the scene had intervened.
Sullivan: Judge Ward wrote a compelling opinion weaving so many important concepts together. These quotes, in particular, really resonated with me: “One of the issues in all of these cases (involving Eric Garner and George Floyd) is the role of other officers at the scene and particularly their complicity in failing to intervene to save the life of a person to whom such unreasonable physical force is being applied. … While the Eric Garners and George Floyds of the world never had a chance for a ‘do over,’ at least here the correction can be done.”
Rabb: To me, what was most memorable was the fact that it took so many sides all working diligently, all for so long, to get here. As her legal team, we were certainly a part of the process this year. But you had Cariol herself who did the right thing over 15 years ago, her team of supporters and community organizations, and media outlets that lent her support. On the law side, there was the legislative action in the Common Council’s passage of Cariol’s Law, that Mayor Byron Brown signed into law, and the judge who had the courage to issue a powerful decision in her favor to correct a grave past injustice.
Constantine Padilla: I agree with everyone. We hear a lot about the breakdown of trust between police and communities of color and while that trust is not going to be restored overnight, it is cases like Cariol’s that help us make a step in the right direction. Hopefully this case can be part of rebuilding some trust even if there is still a long way to go.