We are currently living in a time where institutions and leaders are being questioned—where trust and accountability and confidence in many of the pillars of our democratic society are eroding at an astounding clip. The verdict in the George Floyd trial hopefully will act as a catalyst to slow if not reverse systemic corruption in law enforcement.
Let me state, from the left, there are more good cops than bad cops, but a blue wall of science has protected bad cops at the expense of public confidence, particularly in communities of color. Let’s hope that has changed with the testimony of high-ranking law enforcement officials against one of their own in the Floyd case. It is unfortunate that it would take a stunningly effective 10-minute video taken by a courageous 17-year-old to shake loose the bonds of misplaced loyalty.
I do not favor defunding the police, but I do strongly support reordering funding priorities that relieve our overburdened police officers from social service roles they neither are trained for nor should be asked to shoulder like mental health, substance abuse and homelessness.
In August 2020, the United States Conference of Mayors released their Report On Police Reform and Racial Justice, which offers a comprehensive set of principles that should govern reform. Recommendations include that police departments establish the following policies:
•Use-of-force policies that stress minimal amount of force
•A clearly stated de-escalation policy
•A duty of officers to intervene if excessive force is occurring
•First aid training
•Peer intervention and crisis intervention
•Training policies that stress interactions be impartial and free from bias
•Assigning liaison officers to communities
•A chief diversity officer and consideration of diversity as a factor in promotion decisions
•An aggressive community program, including incentives for officers to live in the communities they serve, participation in community service efforts, youth engagement, immigration and refugee outreach, and homelessness programs
•Requirement that officers be licensed and have a strong system for revoking licenses for serious misconduct
•Requiring use of body-worn cameras and clear policies on their use and for release of videos to the public
This is not an exhaustive list, but it’s reflective of key concepts and ideas that deserve serious consideration as congress grapples with police reform legislation. We must move to deal with a pronounced exposure of systemic racism in communities large and small, regardless of region.Â
In 1968, the Presidential Kerner Commission investigating the riots in the 1960s proclaimed “Our Nation is moving towards two societies, one Black and one white—separate and unequal.” Today, technology is providing us with the ability to effectively conclude the same thing. We must arrest racial profiling and stem the overwhelming nature of racism in our police practices and incarceration rates. This is particularly salient in communities of color.
Another issue that deserves careful consideration is the concept of qualified immunity, which provides protection from civil lawsuits for law enforcement officers. The concept of qualified immunity is neither the result of a law passed by congress nor is it written in the Constitution. Congress gave Americans the right to sue public officials who violate their legal rights in the Civil Rights Act of 1871, also known as the Ku Klux Klan Act.
In 1967, The Supreme Court, in Pierson v. Ray, further established that public officials who had acted in “good faith” and believed their conduct was legal could not be held liable. In 1982, the Court, in Harlow v. Fitzgerald, largely expanded the defense by defining that even officials who violate peoples’ rights maliciously will be immune unless the victim can show that his or her right was “clearly established.” The court stipulated that in order to qualify for the “clearly established” requirement the victim must point to a previously decided case that involves the same “specific context” and “particular conduct.”
Thus, an officer who knowingly violates someone’s constitutional rights will generally be protected from a lawsuit unless the victim can identify previous judicial opinions that addressed the specific context and conduct, a nearly insurmountable obstacle for victims to surmount.
Arguments that claim a fear of rampant lawsuits against the police are overblown, since most municipalities indemnify their officers, meaning the city would pay for any settlement, not the officers themselves.
If we are going to seriously attempt to create a level of trust and accountability in law enforcement, particularly in communities of color where excessive force, sometimes resulting in deaths, is a defining feature of the relationship between the police and the public, we must overhaul these disincentives, whether in the courts or in the congress, in order to prove that we recognize the problem and are determined to fix it. Reform is long overdue.Â