Tag Archives: policing

A Better Approach?

In my continuing effort to find positive aspects of our gloomy socio-political landscape, I came across a very interesting experiment in public safety being conducted in Albuquerque, New Mexico.

The city has established what has been named the “Albuquerque Community Safety (ACS) department.”

Launched in September, the agency is intended to complement the city’s police and fire departments by having teams of behavioral health specialists patrol and respond to low-level, nonviolent 911 calls.

While it is modeled after programs in a few other cities, ACS is the first stand-alone department of its kind in the country. The initiative is still nascent – Mr. Adams and Ms. White are one of just two responder teams at the moment. But authorities here hope it will defuse the kinds of tensions between police and residents that have surfaced in cities across the country and help reinvent 911 emergency response systems, which many believe have become antiquated.

As slogans go, “Reinvent policing” or “Promote Community Safety” are certainly less off-putting than “Defund the Police,” but the premises are similar; the idea is to relieve police from the need to respond to  situations that don’t pose an immediate threat to public safety and that can be better handled by social workers or mental health practitioners who have the often-specialized skills to handle certain interventions.

Most police interviewed about such approaches are enthusiastic, not defensive.

“What Albuquerque is doing is really exciting and innovative,” says Nancy La Vigne, executive director of the Task Force on Policing at the Council on Criminal Justice, a think tank based in Washington, D.C. Police chiefs “almost universally say we’d love to offload these calls to other people. We need these types of models to be developed and implemented, so we can learn from them.”

Even before the police killing of George Floyd sparked massive demonstrations, a number of cities were debating how to reduce the use of lethal force, how  to increase meaningful accountability, and how chronically understaffed departments might reduce the need to send uniformed officers to deal with issues that aren’t, strictly speaking, posing a public safety threat.

In Albuquerque, those discussions were made more urgent by the city’s experience; between 2010 to 2014, “members of the Albuquerque Police Department shot and killed 27 people.”

One of them, in March 2014, was James Boyd, a homeless man diagnosed with schizophrenia. An investigation by the U.S. Department of Justice concluded a month later that APD “too often uses deadly force in an unconstitutional manner,” including against “individuals who posed a threat only to themselves.” The police entered into a court-approved agreement with DOJ that October, which the department has been operating under ever since.

Initially, police shootings in the city decreased for several years. But more recently they have begun to rise again. From 2015 to this year, Albuquerque had the second-highest rate of fatal police shootings in the country among big cities.

If that wasn’t worrisome enough, the state’s behavioral health system was disintigrating.  A criminal investigation into whether 15 of New Mexico’s largest mental health providers had been defrauding Medicare led to the state freezing their funding. They were subsequently cleared of the the allegations, but according to the report, the state’s mental health system has never fully recovered.

Albuquerque’s aim with its new initiative was thus aimed at revamping its entire emergency response system, and not simply to reform policing.

About 1 in 4 people killed by police since 2015 had mental illnesses, according to a Washington Post database. Many of those killings occurred after the families of those people called the police for help.

“The default response is to send police to a scene and hope they solve whatever is happening,” says Dr. Neusteter. That’s “really not in anyone’s interests.”

“By and large [ACS] is a positive move” for policing in the city, says Peter Simonson, executive director of the American Civil Liberties Union of New Mexico. “It holds the promise that perhaps someday we will see fewer armed officers interacting with people in mental health crisis.”

The effort in Albuquerque is still in its early stages, and police organizations and community groups will be watching to see how it works. The early indications are positive.

Wouldn’t it be great if the Left could stop having to defend clumsy language and the Right would admit that American cities need to handle public safety more effectively and with fewer tragic outcomes–if we could all just put our ongoing culture wars on hold, and instead work collaboratively to use emerging information and expertise to make our communities safer?

I guess I’m just a dreamer……

 

There Are Unions…And Then There Are Unions…

Yesterday, I explained how my opinion of labor unions had, shall we say, “matured” over the years.  Like many others, I came to see what happens when power becomes wildly disproportionate–when the parties to “bargaining” are so unequal that actual bargaining is impossible.

My belated support for unions recognizes the importance of genuine collective bargaining.

That support doesn’t extend to today’s iteration of police unions, which tend to be powerful protectors of the worst elements of law enforcement.

Public-sector unions are all in a somewhat different situation than those in the private sector. The ability to interrupt a public service gives them additional clout, and they have consequently fared somewhat better than their private-sector counterparts. To the best of my knowledge, most–but certainly not all– have behaved responsibly.

Then there are police unions, which definitely have not. As an article last year in the New York Times put it,

Over the past five years, as demands for reform have mounted in the aftermath of police violence in cities like Ferguson, Mo., Baltimore and now Minneapolis, police unions have emerged as one of the most significant roadblocks to change. The greater the political pressure for reform, the more defiant the unions often are in resisting it — with few city officials, including liberal leaders, able to overcome their opposition.

They aggressively protect the rights of members accused of misconduct, often in arbitration hearings that they have battled to keep behind closed doors. And they have also been remarkably effective at fending off broader change, using their political clout and influence to derail efforts to increase accountability.

That political clout is significant. Candidates for local offices seek to benefit not just from police union endorsements but from contributions: according to the Times, a single New York City police union had donated over $1 million to state and local races between 2014-2020.

The knee-jerk resistance to reform and the “aggressive” protection of their members are troubling, but understandable, “tribal” behaviors. Less understandable–actually, in my view, incomprehensible–is the current anti-vaccine stance being taken by several police unions.

Police departments around the U.S. that are requiring officers to get vaccinated against COVID-19 are running up against pockets of resistance that some fear could leave law enforcement shorthanded and undermine public safety.

Police unions and officers are pushing back by filing lawsuits to block the mandates. In Chicago, the head of the police union called on members to defy the city’s Friday deadline for reporting their COVID-19 vaccination status.

It’s not just Chicago. The Sheriff of Los Angeles County has said he won’t force his 18,000 employees to be vaccinated despite a county mandate. Hundreds of police officers in San Diego say they would consider quitting instead of complying with a vaccination mandate.

Resistance is bubbling up even though first responders have been hit hard by COVID-19. More than 460 law enforcement officers have died from the virus, according to the Officer Down Memorial Page, which tracks deaths in the line of duty.

On the news a few mornings ago, the head of the Chicago union pontificated that being vaccinated was a “personal choice” that government had no right to over-rule. That is especially ironic coming from someone who has been deputized by the government to enforce rules against the “personal choices” of, say, marijuana smokers, seat-belt resisters and gamblers.

It’s bad enough that ordinary Americans don’t understand the difference between personal liberty and their obligations to their fellow-citizens. (As a recent Facebook meme parodied that declaration, if I’m on a ship and I saw through the floor of my cabin to the water below, it’s my personal decision…). But these are people sworn to protect  and serve their communities–people who presumably became police officers in order to keep others safe. A “choice” to remain unvaccinated doesn’t simply expose the individual officer to a potentially deadly disease; it endangers anyone in the public with whom that officer interacts.

The research is unequivocal: police unions have a negative effect on innovation, accountability, and police — community relations. “Unionized officers draw more excessive-force complaints and are more likely to kill civilians, particularly nonwhite ones.”

The reason I changed my mind about unionization in general was my recognition that disproportionate power exercised by either unions or management leads to negative outcomes. In the private sector, sapping the ability of workers to bargain effectively has driven the widening gap between the rich and the rest.

In the public sector, the ability of police unions to shield bad cops from accountability–to allow them to defy the very rules they are supposed to uphold– endangers us all.

 

 

 

 

 

Incentivizing Appropriate Police Behavior

Many years ago, I spent three years heading up Indianapolis’ legal department. It was–among other things–my introduction to the way municipalities defended against (and far more often, settled) claims of police misconduct and/or brutality. I’d venture to say that very few taxpayers have any idea how costly those claims can be.

A recent post to Lawfare considered not only the dollars, but the sense.

On March 12, the City of Minneapolis agreed to pay George Floyd’s family $27 million for his wrongful death via the knee of a police officer. Despite being the largest pretrial civil rights settlement, it is only a fraction of the taxpayer money spent on settling police brutality. From 2015 to 2019, more than $2 billion, mostly taxpayer money, was used on civilian payouts for police misconduct in only the 20 largest police departments.

As the article points out, the way in which we currently address payouts for police misconduct operates to absolve officers from any financial culpability, no matter how egregious the behavior that triggered the settlement. This is mostly due to qualified immunity, which I have discussed previously. Qualified immunity is a court-invented doctrine that was originally intended to protect officers when they were acting in good faith, but actually ends up allowing police officers to escape civil liability for virtually any behavior, good faith or not.

While qualified immunity often shields government officials broadly from personal liability, it is particularly used with law enforcement. And though it is applicable only to civil proceedings, prosecutors, defense attorneys, judges and even jurors are often swayed during grand juries and criminal proceedings by the protection of qualified immunity.

Depending on the state, officers accused of misconduct might even keep their police pension and even be able to sue the municipality for back pay if they are fired and then found criminally not guilty. The money for civilian payouts for police misconduct does not come from police department budgets. Rather, civilian payouts overwhelmingly come from general funds, though some come from bonds and even insurance policies, particularly in smaller areas.

Between expansive doctrines like qualified immunity and a widespread social willingness to accord police officers–who have an admittedly difficult and dangerous job–the benefit of any doubt, holding an officer personally responsible for misconduct is an exceedingly rare event.

The Lawfare article suggests structural changes that would begin to redress the current imbalance. A number of legal scholars recommend abolishing qualified immunity, and there are other changes that would provide incentives for better monitoring of officer behaviors (and arguably, better training protocols) by police departments. They include moving payouts from city budgets to police department insurance policies and having individual officers carry liability insurance.

The costs of the current system are considerable, and it would be a mistake to shrug off the Chauvin settlement as an anomaly.

Besides the settlement for Floyd’s death, a series of notable civil settlements for police misconduct include $38 million in Baltimore County, Maryland, for the wrongful death of Korryn Gaines and the accidental shooting of her four-year-old son, Kodi; $20 million in Prince George’s County, Maryland, for the wrongful death of William Green; $12 million for the wrongful death of Breonna Taylor of Louisville, Kentucky; and $6 million in Cleveland, Ohio, for the wrongful death of 12-year old Tamir Rice, who was killed while playing with a toy gun in a park. All the people mentioned above are Black. These cases are not cherry-picked but, rather, are part of a much larger systemic problem in policing and municipal government. Black people are roughly 2.5 times as likely as whites to be killed by police. Blacks are 3.5 times more likely to be killed by police when they are not attacking or do not have a weapon relative to whites, like Floyd, Green and Rice. Black women are disproportionately more likely to be killed in their homes by police, like Taylor and Gaines.

There are also many incidents that do not end in death but will probably result in civilian payouts for police misconduct. Some of the most recent incidents include a five-year-old who was arrested and yelled at by police after leaving school in Montgomery County, Maryland, as well as Marion Humphrey Jr., a 32-year-old law student who was detained for more than two hours as state troopers in Arkansas searched his U-Haul. Humphrey, the son of a retired judge, has already sued the Arkansas State Police.

Reforming the way these settlements are funded would not only incentivize improved training, oversight and behavior, it would save taxpayer dollars that could be put to far more productive use.

Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

As Ruth Marcus recently wrote in a column for the Washington Post,  that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

A case from 1982, Harlow v. Fitzgerald established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’” As a post on Lawfare explained,

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that the doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.