A Realistic Path to Police Reform

 


Photo by AJ Colores | Unsplash

Photo by AJ Colores | Unsplash

This week begins the trial of former Minneapolis police officer Derek Chauvin for his role in the death of George Floyd.  As the trial unfolds, the public will once again discuss a myriad of ways to reform police departments, debating everything from “defunding the police” to banning chokeholds. 

American policing needs reform but not in the ways you have been led to believe.  I should know.  After spending approximately fifteen years in law enforcement, I became an attorney and have represented police officers in civil litigation, at the collective bargaining table, and in the aftermath of officer-involved shootings.  

Politicians, professors, and pundits have proposed reforming the police through a slew of impractical, ineffective, and naïve policies.  Many of these proposals sound appealing but they do not withstand scrutiny.  

President Biden, for example, suggested officers de-escalate volatile situations by shooting suspects in the leg.  Marksmanship is exceptionally difficult, and departments rightly train officers to aim for center mass.  Don’t believe me? Go to a pistol range and see how difficult it is to hit a stationary paper target ten feet away in clear lighting conditions without the stress of return fire. 

The Police Use of Force Project endorsed police giving verbal warnings prior to using lethal force.  Of the nation’s 100 largest police forces, 81 require officers to “give a verbal warning, if possible, before using deadly force,” up from 70 departments prior to June 2020.  Justified uses of lethal force almost always happen instantaneously making verbal warnings impractical.  Situations allowing for verbal warnings are usually those where lethal force is unnecessary. 

Others criticize the police for being too militarized and call for disarming them altogether. Modern interpretations of the Second Amendment, however, guarantee some criminals will be heavily armed.  Given this harsh reality, the police should not be outgunned.  See the 1997 North Hollywood bank robbery for a harrowing example of why police now carry rifles in squad cars.

Next up is the push to abolish chokeholds.  Neck restraints, especially of the variant leading to George Floyd’s death, admittedly look barbaric and this is likely why the states of California and New York passed legislation banning the tactic entirely.  But the carotid neck restraint—very different than what Officer Chauvin employed—has proven an effective non-lethal method of subduing aggressive suspects without resorting to shooting them.  In other words, it saves lives when properly applied. 

Another recommendation is to remove police officers from schools as occurred in Denver, Portland, and Milwaukee.  Anecdotal evidence exists of schools misusing officers to discipline students rather than to enforce laws but the propensity for campus violence makes their presence essential.  I personally know a school resource officer who built a rapport with a student that later snitched on a classmate planning a Columbine-style attack and had firearms in his locker.  News stories don’t cover tragedies that never happened.  Realizing their value, in 2013 President Obama authorized additional money for the hiring of school resource officers.

A chorus of people points to police associations (many erroneously refer to them as “unions”) as the culprit for hindering the proper discipline of officers.  At times, organized labor in any profession oversteps to achieve gains for its members at a cost to the public.  Serious debate might consider the scope of collective bargaining agreements but eliminating police associations would curtail the ability to attract and retain qualified officers.  California has some of the strongest police associations and that has not prevented departments from firing problematic officers. 

Some advocate the creation of a national database of problematic officers to coordinate information sharing and prevent other agencies from hiring a previously terminated officer. Departments already conduct background checks and often know why a previous agency fired an applicant.  Police salaries in some cities are so low they have no choice but to scrape the bottom of the barrel and will do so even with a database. 

Many place faith in body-worn cameras.  According to a Bureau of Justice Statistics survey, nearly half of U.S. law enforcement agencies had body-worn cameras in 2016.  The technology, however, has limited effectiveness and rarely tells the entire story.  (The New York Times crafted a video project to demonstrate how camera footage warps reality.) Shootings from one camera angle sometimes give the appearance of an unjustified shooting but another angle might exculpate the officers.  Moreover, the public cannot make credible conclusions regarding an officer’s culpability based exclusively on camera footage, especially when they do not know applicable legal standards. 

Emily Bazelon and Paul Butler, law professors from Yale and Georgetown, campaign for compelling officers to provide statements immediately following shootings.  Both law professors are certainly familiar with the reasoning in the landmark case, Garrity v. New Jersey where the US Supreme Court ruled officers are entitled to the same Fifth Amendment rights against self-incrimination as the rest of us.  If you want the police to respect your constitutional rights, it’s a good idea to respect theirs as well. 

In the wake of George Floyd’s death, former Police Chief and current Congresswoman Val Demmings blasted the rank and file.  Chiefs often deflect blame for their own leadership failures onto their subordinates.  Congresswoman Demmings and other like-minded chiefs should brush up on the most basic of all leadership principles: You are responsible for everything your unit does and fails to do.  Or, as Harry Truman explained, the buck stops with you, Chief.

After New York City proposed cutting $1 billion from the NYPD, an unimpressed Alexandria Ocasio-Cortez remarked, “Defunding police means defunding police.”  Crooks and predators everywhere must be salivating.  Effective reform requires more than catchy slogans. 

The second and more credible iteration of defunding the police favors diverting funds from policing to social programs.  These same advocates, however, often cite Ronald Reagan’s past diversion of funds away from social programs as the cause of their demise.  Why do they believe defunding the police will result in more effective policing? When Stockton, California defunded its police force, killings by officers skyrocketed.

Reagan’s cuts to social programs and mental health facilities resulted in mission creep forcing police officers to become crime fighters, social workers, and mental therapists rolled into one.  Most officers do not prefer this reclassification, nor are they trained for it.  The alternative of sending social workers or mental health experts who are unarmed and untrained in self-defense to respond to 911 calls involving violent persons with mental disorders is not viable, nor safe for anyone, including suspects.

So, what can realistically be done to achieve effective policing while honoring civil rights?

First, hiring the right people is imperative.  No amount of training or smart policies will work without competent people of character wearing the uniform.  Studies show officers with college degrees are less likely to engage in unauthorized uses of force, less likely to be fired for misconduct, and more likely to embrace community policing. Unfortunately, many municipalities experienced budget struggles prior to Coronavirus and are worse off now making it difficult to attract college-educated candidates to the ranks. 

The solution comes in the form of a reverse GI Bill providing federal money to assume the student loans of college graduates in exchange for five years of service as an officer.  After their five-year obligation, some of these officers might make police work a career and improve the supervisory ranks in the process.  Others will go on to different careers where they can share their experiences with those unfamiliar with policing.  Good people in the ranks make better decisions and communities reap the benefits.

The right police officers need the right police leadership.  Police management is, unfortunately, replete with incompetence and unethical behavior.  City governments often appoint sycophants as chiefs and those chiefs, in turn, appoint their drinking buddies to command staff positions.  My second reform proposal: Apply vicarious liability to politicians and chiefs for the “sins” of their police officer agents, or in legalese, implement the doctrine of respondeat superior to these officials.  (A monetary cap on recovery would prevent qualified persons from avoiding leadership positions entirely.)  

Many politicians, unwilling to face this consequence, will likely turn police operations over to the local sheriff, a regional force, or a state agency with higher levels of professionalism and more experienced department heads.  The agencies unwilling to turn over police operations to a separate entity would immediately administer policies, promote effective supervisors, and demand proper hiring, discipline, and training protocols because they would now face personal liability for their officers’ misfeasance and malfeasance.  The fish rots from the head down; vicarious liability motivates hiring the right people to lead police agencies.

Third, the right chiefs need to engage the community in a massive education effort.  Every agency should have a citizens’ academy allowing the public to learn fundamental policing concepts such as the police role, crime investigation, and use of force laws and policies.  Citizen students can learn why there is no such thing as a routine traffic stop and what to do when stopped by the police; why “unarmed assailant” is a misnomer since suspects sometimes rip a cop’s gun out of a holster and use it on them; why it is unrealistic to shoot someone in the leg or give verbal warnings; and why an officer may be justified when shooting a suspect who “only had a knife” or “merely brandished a replica gun.”

In this educational setting, police can restore citizens’ confidence in their officers.  An untrained citizen might see the shooting of a suspect as immoral, unethical, and illegal, whereas a highly trained SWAT officer might see that same shooting as the best option morally, ethically, and legally.  An academy can bridge this gap, teaching citizens the objective reasonableness standard set forth in the US Supreme Court’s Graham v. Conner decision and then have real-world application in shoot-don’t shoot firearms simulators so they appreciate the tremendous difficulty officers face in lethal force situations.  When the police association in Baltimore invited grand jurors to the simulator, participants walked away with a new appreciation for the superhuman demands of lethal force situations. We need to make this eye-opening experience universal and perhaps even a high school graduation requirement.  Graduates of a citizens’ academy will understand shootings initially appearing awful might in fact be lawful.

Additional reforms are necessary.  In-service training needs an expensive and worthy o
verhaul to include one month per year dedicated to legal updates, physical training, and practical applications.  Alcohol abuse in the ranks is a real problem with studies indicating 25 percent of officers on the street suffer from substance use disorders, making counseling critical. De facto arrest quotas lead to bad practices and personnel evaluations should instead focus on qualitative police work rather than quantitative data. City councils’ demands for lower crime rates lead to police managers’ demands for more arrests resulting in patrol officers inclined to push the legal envelope on a vehicle search.  Vicarious liability would curtail this policy choice. 

Critics of police rightly point out the impropriety of police agencies investigating themselves through internal affairs.  I recommend an independent state-run external affairs bureau, comprised of attorneys versed with police disciplinary laws and retired police personnel familiar with the use of force practices to investigate potential misconduct.

Big data studies highlighted officers involved in unauthorized uses of force had just previously completed an emotionally devastating radio call such as a suicide or domestic violence involving a child.  Without time to recover emotionally, the departments dispatched these officers immediately back out on another high-stress call.  Maybe those officers are not bad apples but human beings in need of decompression—a time out at the station.

During a campaign town hall, President Biden promised to reform the police.  He also told a chief he had a right to go home at night after putting on his badge in the morning.  Adopting the carrot of a reverse GI Bill, the stick of vicarious liability, and the jewel of a citizens’ academy will help America achieve necessary reforms and strengthen police-community relations.  As a former member of law enforcement, I look forward to the day when a knowledgeable citizenry holds qualified officers and responsible leaders accountable and supports the men and women who put on those badges every day. 

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