By Annie Han
Months of Black Lives Matter marches across the nation followed the tragic murder of George Floyd to protest police use of excessive force against Black individuals. Professors Brandon L. Garrett of Duke Law School and Christopher Slobogin of Vanderbilt University School of Law recently assessed how American constitutional law continues to ignore or even facilitate unsound police actions. They also propose reforms, emphasizing standardization and accountability.
In the United States, policing involves a high number of police-citizen interactions that disproportionately affect Black people and other minorities. This racial disparity presents itself in traffic stops, questioning, frisks, arrests, and excessive uses of force, including deadly force. The law has inadequate tools to regulate police conduct and ensure accountability.
The regulation of police primarily comes from the U.S. Constitution and the federal courts. While most states have their own regulations on police-citizen encounters, until recently, most of them followed federal approaches. The U.S. Supreme Court became involved due to the abuse of power by law enforcement, often toward Black citizens, in the 1960s, and it started to apply constitutional provisions to policing, including through the Fourth and the Fourteenth Amendments. However, over time, having such rules established through constitutional decisionmaking comes with problems of ambiguity, case-specific restrictions, rigidness of legal precedent, and delays, when cases slowly make their way through the federal courts.
Police can be held accountable in a few ways: the exclusionary rule, federal civil rights actions, and criminal and administrative sanctions, but these rules are largely ineffective in practice. The exclusionary rule requires the exclusion of evidence taken illegally in a court of law, but it only applies in criminal prosecutions. Rather than deter the police, the rule often does not apply in cases when police violate a person’s constitutional rights.
People are allowed to sue state and federal officials who violate their constitutional rights in federal civil rights actions, but winning these lawsuits is extremely difficult and uncommon. This is due in part to the defense of qualified immunity, allowing officers to avoid responsibility unless they have broken some clearly established rule. Along with this, good faith defenses and the many technicalities involved in suing federal or state departments greatly reduce the incentive for people to sue.
Criminal sanctions against police officers are possible but rare. In court, prosecutors must prove that the officer had the specific intent to deprive victims of their constitutional rights against defenses under permissions by the Fourth Amendment and qualified immunity. Internal discipline is also rare due to the power of police unions. Punishments or dismissals of officers are able to be reversed, and administrative accountability is difficult because unions can prevent records of previous misconduct from being released. They inhibit civil authority from intervening in their management and create significant tension when faced with police reforms.
Currently, some police departments are adopting policies to further restrict the use of deadly force and prevent escalations. However, it is not required. The Supreme Court has presented few restrictions on the use of deadly force, adopting a deferential reasonableness-based approach.
Arrests resulting in custody are common practice in the United States, and alternatives, even for minor crimes, are infrequent. Custodial arrests continue to disproportionately impact minorities and are possibly fiscally motivated due to income from fines, fees, and bail bonds. Police have a great amount of discretion in these decisions, and arrests are generally permitted as long as they are “reasonable.” Traffic laws are often subject to this abuse along with searches where drivers are not informed of their right to refuse consent.
Police stops can also be arbitrary as long as there is a “reasonable suspicion,” permitted by Terry v. Ohio(1968). These increase the frequency of confrontations between police and citizens and again involve heavy racial imbalance, creating distrust especially in communities of color. Outstanding warrants, which can be given for minor crimes and traffic violations, are enough for an officer to stop individuals, and resisting during these stops can make matters much worse.
Garrett, Slobogin, and others proposed various reforms in another report Changing the Law to Change Policing: First Steps. They pay particular focus to the federal level due to the segmented nature of US police departments and need for greater standardization. These reforms, if adopted, would legally limit the authorization of stops and arrests and enforce a higher level of police accountability, reducing police-citizen interactions.
At the federal level, they propose:
- The elimination of qualified immunity (still allowing indemnification for individual officers)
- Removing the policy and custom defense for municipalities
- Improving the federal statute that permits suits to be brought against illegal police and prosecutor patterns and practices
- Enhanced prosecutions of police officers who willfully violate First Amendment rights
- Federalization of a use of force standard that recognizes proportionality
- Reinforcing the constitutional standard that police announce their presence
- Maintain a national database identifying officers who have been de-certified or otherwise found to be engaged in misconduct and establish national standards for data
- Greater coordination between the different units within the federal DOJ that deal with policing
- National body that can uses funds as leverage to assure state and local departments meet minimum requirements
At the state level, they propose:
- Specific reforms regarding the use of force, militarized tactical teams, the use of invasive surveillance technologies, and stop, search, and arrest practices
- Stops based on reasonable suspicion be limited to certain categories of crimes
- People be informed they have a right to refuse consent
- Consent searches be banned entirely in connection with traffic stops unless reasonable suspicion exists
- Custodial arrests be reserved primarily for serious offenses
- Taping all interrogations
- Implementing explicit rules about when police body camera footage must be made available to the public
- Establish mechanisms for independent review of critical incidents
- De-certify wayward police and report de-certifications to national authorities
- Reexamine union contracts and LEOBRs with an eye to removing unreasonable limits on police accountability
- Collect and publish various types of information about their policies and practices
- Reviewing their criminal codes and considering whether steps should be taken to decriminalize certain offenses
- Remove certain custodial penalties
- Discourage overcharging
While some of these reforms have been adopted by individual cities and departments, federal and state legislations have failed to meet many of these reforms with many lawmakers at the having proposed changes to police conduct, but notable changes have been made mostly at the local level or through internal changes in various police departments.
For example, large police districts, such as Houston and Chicago, have implemented bans on chokeholds and neck restraints, and many states heavily limited their use. However, only 3 states and D.C. have officially implemented state-wide bans on chokeholds in the wake of the Black Lives Matter protests. Former President Trump signed Executive Order 13929 on “Safe Policing” June 16th, 2020, which placed a nationwide “ban” on chokeholds, but it still permits officers to use them if they feel their lives are at risk.
In the federal government, the Ending Qualified Immunity Act (H.R. 7085) was introduced to U.S. House of Representatives in June 2020 by Libertarian Representative Justin Amash of Michigan, and it is the first bill to ever have tripartisan support, having cosponsors from the Democratic, Republican, and Libertarian parties. However, after being referred to the House Committee on the Judiciary, there was no further action made on the bill. A similar bill was proposed in Virginia in August 2020, and though it passed the House, it was killed in the Senate. As of now, Colorado is the only state that bans qualified immunity as a legal defense, making it easier to hold police accountable in court.
The need for and maintenance of a national de-certification database has also been a topic of greater focus. While the International Association of Directors of Law Enforcement Standards and Training (IDALEST) runs a National Decertification Index (NDI), participation in this database is optional state with agencies in 44 states currently taking part. Four states: California, Massachusetts, New Jersey, Rhode Island, do not have the authority to decertify. The “Safe Policing” Executive Order also included provisions for the creation of a national database by the Attorney General and an approval process for independent credentialing bodies to assess policies and practices.
A chart of current state policies on some of the proposed reforms has been attached below. Each of these policies are not uniform in their standards, restrictions, or reinforcement, especially in regard to the release of body camera footage.
Current State-Wide Policies on Some of Proposed Reforms, including D.C. (as of Feb. 18th, 2021)
|Required to Inform about Right to Refuse a Search
|Consent Search Ban
|Body Camera Footage Availability7
|Ban on Chokehold
|Ban on Qualified Immunity
|Integrity Bulletins – Public Record of Police Investigations13
|✓2(California Highway Police)
*These states have wiretap laws that require “two-party consent”, so every party must agree when being recorded, causing restrictions on the release of body camera footage in the states noted.
1 HB10-1201 “Concerning Duties Related to Peace Officer Contacts” (Col. 2020): http://www.leg.state.co.us/CLICS/CLICS2010A/csl.nsf/fsbillcont3/34BDAFC4BDBE212B872576A8002BC0D3?Open&file=1201_enr.pdf
2 Rodriguez v. California Highway Patrol, 89 F. Supp. 2d 1131 (N.D. Cal. 2000)
3 Minnesota v. Mustafaa Naji Fort (Minn. 2003): http://www.lawlibrary.state.mn.us/archive/supct/0305/ OP011732-0501.htm
4 State v. Carty (N.J. 2002): http://lawlibrary.rutgers.edu/courts/supreme/a-28-00.opn.html
5 State v. Arreola-Botello (Oregon 2019): https://cases.justia.com/oregon/supreme-court/2019-s066119.pdf?ts=1573834543
6 Title 31, General Laws entitled "Motor and Other Vehicles" 31-21.2-5 (R.I. 2004): http://www.dot.ri.gov/safety/docs/CCPRA/CCPRA_31-21-2-1.pdf
7 National Conference of State Legislatures (NCSL) Body-Worn Camera Laws Database: https://www.ncsl.org/research/civil-and-criminal-justice/body-worn-cameras-interactive-graphic.aspx#/
8 AB1196 “Peace Officers: Use of Force” (Cal. 2020): https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1196
9 Ned Lamont, Executive Order No. 8 “Police Use of Force and Accountability” (Conn. 2020): https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-8.pdf
10 SB6670 “Establishes the Crime of Aggravated Strangulation” (N.Y. 2020): https://www.nysenate.gov/legislation/bills/2019/s6670/amendment/b
11 DC Code§ 5–125.01 (D.C. 2018): https://law.justia.com/codes/district-of-columbia/2018/title-5/chapter-1/subchapter-xiii/section-5-125.01/
12 SB20-217 “Enhance Law Enforcement Integrity” (Col. 2020): http://leg.colorado.gov/bills/sb20-217
13 International Association of Directors of Law Enforcement Standards and Training: https://www.iadlest.org/our-services/ndi/about-ndi
Annie Han is an undergraduate student at Duke University working this semester with the Wilson Center for Science and Justice.