After the murder of George Floyd, the nation erupted in protest, and a long-overdue conversation about police reform finally took place. Many plans were proposed to improve our justice system, from the sensible to the outright deluded. One initial idea was to defund the police, or at least withdraw them from vulnerable communities. While this seemed like it would protect these communities from harm, it created an entirely different problem. Crime levels have spiked, with murder up 20% in major cities. Chicago, for instance, had over 100 shootings in one weekend, and New York City has had its highest level of gun violence in 25 years. The crime wave, which has fallen disproportionately on people of color, is in large part due to these misguided attempts to protect marginalized communities. Furthermore, as a result of this crime wave, many of these communities have themselves asked for an increased police presence. The call to defund or reduce the police is largely a case of trying to force a solution on these communities that will not work, and that they by and large do not want.
So what, then, ought we to do about police violence? In order to figure that out, we first need to understand the problem, or rather, the problems. The three intertwining issues with the police are a lack of accountability, a lack of community engagement, and a lack of government restraint. First, there is a lack of accountability, meaning bad actions by the police go unpunished by their superiors. Second, there is a lack of community engagement. Mistrust between law enforcement and marginalized communities prevents effective cooperation. This in turn causes an unnecessary escalation in situations that could have been resolved peacefully. Finally, decades of government overreach have increased the interaction between police and the community in ways that are likely to heighten conflict. Because of the interlocking nature of these issues, it is best if we look at them together in the context of the following four solutions.
First, we need to reform the concept of qualified immunity. There is a principle, called sovereign immunity, that holds that the government cannot be sued for any of its actions. (That is very oversimplified, the interested reader should learn more here.) Sovereign immunity only applies to the government as an entity, and not to any particular person. However, there is a corollary of this idea, qualified immunity, which protects government officials from legal responsibility for their actions. These government officials have immunity so long as they are acting on behalf of the government without violating “clearly established” law. This is all fine and good, but the way it gets applied to the police is misguided.
The problem lies with the phrase “clearly established” which has been interpreted to mean that, not only must a government agent’s action be illegal, but a court in their jurisdiction must have clearly established that the specific action is illegal with a previous case. The upshot of this is that an officer can commit an illegal action, and know it is illegal, and face no legal consequences unless the court had already said they could not do that specific thing. For instance, the Fifth Circuit recently ruled that it is not clearly established law that a guard cannot pepper spray a prisoner for fun. The court found that, while hitting a prisoner for fun was clearly established by a previous case as illegal, pepper-spraying one wasn’t. This goes far beyond giving police the benefit of the doubt in legally ambiguous situations, this allows police to engage in egregious conduct with impunity, so long as they can find some technical reason why it is unique.
Reforming qualified immunity would simply be a matter of redefining “clearly established” to mean “clearly established by statute,” rather than “clearly established by the courts in an identical case.” This would make sure that police were accountable for their actions, while also still protecting police who are engaged in the lawful discharge of their duties. Qualified immunity provides valuable protection for police, who often have to make split-second decisions with imperfect information, decisions that in hindsight could clearly be wrong. However, it is possible to keep a limited version of qualified immunity that allows the police to do their jobs while stripping away its blanket protection for illegal behavior.
The second solution is to weaken the power of police unions. Police unions, like all unions, try to protect their members, especially from their employers. This can be a good thing. However, sometimes police unions will go too far and protect union members who ought to be disciplined or fired. In San Antonio, for example, nearly half of police fired by the police chief were reinstated after being brought before a union-mandated arbitrator, including one who repeatedly yelled racial slurs at a suspect, and another who tried to give a homeless man a poisoned sandwich. Too often, police unions end up shielding police officers from accountability for their actions, which studies have found increases police violence.
There are many ideas on how to reform police unions. For instance, states can rewrite laws to prevent unions from intervening in police disciplinary proceedings. A more permanent solution is to weaken the power of police unions, and public-sector unions in general (that’s a story for another time,) over city governments. Another solution would be using campaign finance reform to weaken union control over elections. Police unions are powerful largely because they use union money, and union votes, to sway elections toward candidates that they support. Police unions can, essentially, pick their own bosses, which makes these “bosses” much more circumspect in reigning in police abuse.
The third solution is to rethink the scope of police responsibility. Eric Garner, for example, was killed in an altercation with police that started when he was caught selling cigarettes without a license — truly a crime for the ages. Most cities have thousands of pages of laws and regulations, and police are expected to enforce all of them. Even police officers with the best of intentions will occasionally make mistakes. Even if the probability of making the mistake is 0.1%, the more regulations police have to enforce, the more potential confrontations they will have with the community. So, the next time you want your local government to regulate lemonade stands, or mandate the use of car seats with dubious protective value, ask whether you are comfortable with the police using force to restrain someone who refused to comply with the regulation. If the answer is no, then don’t support the new law. Over the past half-century, government overreach has encroached on all of our lives and freedoms, and one inevitable result of this has been an increase in encounters, and thus an increase in violent encounters, between police and the community.
The final solution to police brutality is to increase community engagement with policing. In order to be successful, police need the support of the community, yet lower-income, high crime communities are among the least likely to trust the police. This makes them less likely to cooperate with law enforcement, which reduces their effectiveness, which leads to more crime, which leads to a heavier hand from law enforcement, which leads to a vicious cycle — the primary victim of which is the community itself. In order to restore trust between police and the community, we need people to believe that the police are for them, and not against them. Nobody likes crime, especially if they have to live right in the middle of it, so if we can help these communities to believe, and to believe correctly, that the police are there to protect people like them from violence, then the communities will be much more willing to trust the police. This, in turn, will make the police more comfortable with the community, since they will no longer view every civilian as a threat, but instead as a potential asset in protecting the peace. In medieval Britain, being on the police force was an elected position. The rationale behind this was that the police ought to not just be accountable to the community, but connected to it. We need to find a way to get back that old spirit of the police, not as an occupying force, but as a vital and interconnected part of our society.
This all sounds good in theory, but how exactly do we help reintegrate the police into our communities? There is a role for everyone to play here. The police can help improve relations by positioning themselves to help, rather than hurt, the community, without compromising their duty to enforce the law. A good case in point is the officer who pulled over a single mother for not having car seats for her children, which is illegal. Rather than just ticketing her, and then arresting her when she couldn’t pay the fine, he fixed the problem by buying her car seats instead. This is what police ought to do: enforce the law in a way that helps, not hurts, law-abiding members of the community. Incidentally, they might be able to do this more easily if they were provided more than eight hours of training on community-based policing.
But this is not only a task for the police. The duty to improve relations between the police and the community is one that falls on all of us. The police are vastly overworked, doing everything from fighting gangs to dealing with our mental health crisis. Taking some of that burden off of their shoulders would not only improve community relations but also make our communities safer. And we don’t have to wait for a better policy to do it. From volunteering at your local homeless shelter to reconsidering calling 911 every time something annoys you, you can improve police-community relations without waiting on policy changes that could take years.
While this article may seem a bit hard on the police, I want to reemphasize that most of our nation’s police force is made up of dedicated men and women who work hard to keep us safe, and for that, they deserve our gratitude and respect. But even if 99% of the cops on our streets are good, that still means there are about 7,000 dangerous cops, and the system needs to be reformed so that they face accountability for their actions or, better yet, are weeded out before they needlessly take an innocent life.
So next time you see a cop, thank them for their service and then get to work building a system that keeps our communities safe, both from crime and from those who fight it.
Categories: Domestic Affairs, Law
Good article; a couple comments:
1. Eschew the phrase “of color” from your vocabulary; it’s both unneeded and needlessly close to “colored”.
2. In the context of an article it’s better to refer to the “death” of Floyd than his “murder”, given that no one has yet been convicted of said murder.
3. Your example of the inmate pepper sprayed “for fun” isn’t a good one. It doesn’t fairly represent the position of the appellate ruling. The court specifically stated that, “[qualified immunity] will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel… it’s irrelevant that we hadn’t previously found a use of pepper spray… to violate the Eighth Amendment.” The court simply ruled that it could not be shown “beyond debate” that pepper spray was not a de minimis use of force. Whether that’s right or wrong is a different matter, and perhaps the standard ought to shift to the preponderance of evidence or similar. The legal standards for qualified immunity may need to change, which would be a job for the supreme court, and likely be easier with Justice Barrett’s recent appointment. But the case you linked doesn’t support your assertion that, “the Fifth Circuit recently ruled that it is not clearly established law that a guard cannot pepper spray a prisoner for fun.”
There’s a better example of qualified immunity gone bad here: https://reason.com/2020/09/23/amy-coney-barrett-demolishes-the-qualified-immunity-claim-of-a-detective-who-framed-a-man-for-murder/
Nitpicks aside, this is a well-written article, and your idea about potentially increasing the proportion of elected police officials is a good one (especially if they are localized such that different neighborhoods can choose law enforcement officers that best meet their needs.) Good job, and I look forward to reading your further writings.
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Good work. A few comments.
I have no problem with your thoughts on qualified immunity.
I do have some issues with your thoughts about police unions. In general, unions are brought about by bad management. Arbitrariness, bias, and lack of progressive discipline by management being the main causes of the rise of police unions in addition to the benefit issues. I believe this is true for the public sector as well as the private sector. I have been on both sides of the table. I was a member of a police union. I was also a police administrator having to administer discipline and navigate union labor contracts.
I believe the use of arbitrators to adjudge police disciplinary issues can work. The key is to make sure how the arbitrator is selected is fair to both sides. In Michigan, the Uniform Arbitration Act seeks to provide a system whereby unbiased arbitrators are assigned to applicable cases.
Police officers are entitled to due process in most disciplinary cases. When this did not occur in the past it brought about police unions.
Unions being forced to defend bad officers is a symptom of a much bigger problem. The roots of the problem are in poor hiring practices in law enforcement (no psychological screening, etc., small pool of candidates due to low pay, shift work), lack of responsible accountability due to bad management and poor supervision, and negligent retention by lack of standards in areas of physical and mental well-being. I could go on…
Increasing a community engagement is important. The example of the officer buying car seats is really nice, but it reminds me of teachers having to buy supplies for the class room. You have to ask yourself, why does the teacher and the officer have to spend their hard-earned money for these commendable efforts? Where is the “village”?
David A. Zomer
November 4, 2020
Good solid article. I like your three suggestions and agree with them but I hesitate to call them a “conservative plan” as you do as I have found many individuals from all sides of the political spectrum suggesting and debating the merits of these ideas.
I look forward to seeing more of your writings.