Since George Zimmerman was acquitted in the death of Trayvon Martin, which resulted in the founding of Black Lives Matter (BLM) in 2013, law enforcement and all police officers have been scrutinized for everything said and done or not said and done. Hearing of a purported “abuse” on a citizen by a police officer(s) at least once a month by a major news outlet seems to have become the norm. Because of this intense scrutiny, movements calling for “defunding the police” and police reform have become the battle cry from portions of society.
In an effort to police the police, some states have introduced and/or passed laws that have removed qualified immunity from law enforcement officers in that state. Other laws to prohibit the use of chokeholds or the use of Tasers and other less-lethal weapons have also been introduced and/or passed by state legislatures or are planned to be introduced. Congressional Democrat and Republican lawmakers have each introduced bills for police reform that each side believes is the solution to ceasing or preventing the perceived abuse by law enforcement officers. Unfortunately, it does not appear anyone is speaking to or listening to scholars and experienced professionals within the law enforcement community before they craft and introduce legislation. In fact, I interpret the response by the Democratic Party as a knee-jerk reaction to appease its constituents, and the response by the Republican Party is to counter what it perceives is bad legislation by the Democratic Party.
On June 7, 2020, congressional Democratic House Representatives Karen Bass and Jerrold Nadler introduced the Justice in Police Act of 2020. The first section of this act removes qualified immunity and erases long-standing SCOTUS reasoning by specifically stating in the legislation that it is not a defense when “the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed” (emphasis my own). Therefore, the long-established good faith doctrine is erased. An additional danger in this portion of the legislation is the word otherwise. This word is not defined or interpreted, so what exactly does this word mean when used in that sentence?
I urge all law enforcement officers to read legislation from their local, state and federal governments and to become proactive voices of reason. Failing in this responsibility will mean changes to your rights while performing duties that have no equal in any other industry. Page six of the Policing Act proposes removing the word “willful” and inserting the sentence “knowingly or with reckless disregard” in Section 242 of Title 18, USC (emphasis my own). The problem is who is going to interpret the definition of “reckless disregard,” which is not defined. What one person may perceive as reckless disregard may not be by another person. The oversight or dismissive mindset of the language used in legislation may have unintentional reverberating effects and cause more problems than solutions.
There is an established difference between how a case is reviewed and analyzed in a criminal and a civil court hearing. In 1989, the Supreme Court established the same difference when a case pertains to a law enforcement officer and stated, “We hold that such claims are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due process standard” (Graham v. Connor 490 U.S. 386 ). A recent case indicates that whereas the court standard of objective reasonableness was the norm, today’s courts discard long-standing doctrines as already indicated in this article and instead opt for the standard of what would they (civilians) do or the due process standard (Cunningham v. Shelby County Tennessee, et al. [No. 20-5375] [6th Cir. 4/19/21]). There is an old legal saying of “ignorance of the law is no excuse,” but when the general consensus of the public mirrors the mindset of President Biden when he said “just shoot them in the leg,” there is danger in permitting individuals ignorant of the training and dangers law enforcement officers encounter to mandate policy and procedures or micromanage every nuance of police activity.
To further illustrate the failures of the Policing Act, the act mandates that all personnel files, including but not limited to disciplinary actions and awards and commendations, are to be reviewed by a new hiring agency prior to hiring officers. This mandate disregards laws that specifically prohibit this practice and removes the checks and balances provided by a state’s public safety administration and protections from discrimination for those officers subjected to witch hunts by superiors who “just don’t like” that officer. Whereas I agree that some system must be implemented to identify officers who would have otherwise been terminated for misconduct, dereliction of duty or incompetence so as to not be hired by another police agency, I cannot agree with the language used in the Policing Act to accomplish it.
On June 17, 2020, seven congressional Senate Republicans introduced the Republican version of police reform titled the Just and Unifying Solutions to Invigorate Communities Everywhere Act of 2020 or simply titled the JUSTICE Act. This act takes a different approach to police reform in that this legislation establishes commissions for studies to evaluate certain aspects of the law enforcement profession and to use the recommendations and results from these studies to craft legislation to improve the law enforcement profession where needed. There are mandates in this legislation such as the mandatory use of body and dashcams, but no mandates that appear to punish officers while performing their duties.
If congressional leaders are serious about police reform, then they should address the training police officers receive. What about mandatory schooling for investigators instead of on-the-job training the majority receive? How about mandatory training for all sheriffs and chiefs of police? Just because they hold a rank does not mean they are knowledgeable or proficient. Why not establish a national training requirement in that first-line supervision, mid-management, senior leadership and executive leadership schools are nationally consistent and written by academic scholars and law enforcement officers who are subject-matter experts?
The Founding Fathers debated and argued many long and arduous hours for 116 days to create this nation’s Constitution. It appears today’s members of Congress create legislation from knee-jerk reactions and push legislation through via partisan wants and demands. If police reform is to be truly responsible, actionable and effective, then we must insist legislators take their time and are careful, considerate and deliberate.