Alternatives to Traditional Policing

September 3, 2020

A 17-year-old girl in Oregon sent a photo of her slit wrists to her friend on Snapchat. Her friend called authorities for what’s called a welfare check or wellness check: checking in on someone to make sure they are alive and safe, and if they need further help. Calm, thoughtful de-escalation of the situation can spell the difference between life and death. But far too often, situations like this can turn deadly after the police arrive. The presence of an armed police officer who represents the binding authority of the state can be emotionally triggering to many who are already in an emotionally-heightened state. And for those who may be experiencing an acute mental health episode, it may cause the person to act in an even more heightened way. If police, who are not typically trained as counselors or licensed mental health professionals, react aggressively instead of following proper professional mental health protocols, fatalities may occur. This was the case for 36-year-old Travis Jordan, whose girlfriend called the police, worried that he would take his own life in Minneapolis. When police arrived to the scene, Jordan refused to open the door. The officers contacted their sergeant, who said that they could not force entry into the home, even through the backdoor. Through the window, they could see that Jordan was holding a knife. The officers pulled their guns while Jordan was still inside, seemingly on the verge of opening the door. Jordan eventually stepped out, and the officers shot him eight times, killing him. The police later said that they were not accompanied by a mental health professional. Another man named Damien Daniels was also having a mental health criss, and was killed during a wellness check. There are numerous other examples of when wellness checks such as these turn deadly.

Back in Oregon, that 17-year-old girl lived. The police never went to her house for the wellness check. Instead, Chelsea Swift, a crisis worker, medic, and EMT and her work partner arrived at the teen’s home. “We get sent to say hi. She’s pissed that her friend called, but we end up having a great interaction. We do some counseling. We do some wound-care on her cuts.” Swift says it’s the integrated approach that can bring the seemingly unwilling to safety, “It’s that medical and mental health piece. She did not want to talk to us but because it was like, ‘Hey, we need to clean up this flood why don’t you just let us do that’….now we’re talking and having a really good resolve for everyone.”

Swift doesn’t just go on wellness checks. If someone calls about a person experiencing homelessness in the street, sometimes instead of the cops, she’ll go. She sometimes mediates disputes and arguments. She uses techniques that take the power dynamic of citizen vs. the state out of the equation. Sometimes she’ll squat to physically lower herself—a non-threatening, deferential move to make people feel at ease and safe. If someone is screaming, she doesn’t tell them to stop, but moves with them outside to allow for more space and calmness, less clutter. “It’s more than deescalation, it’s about changing that outcome, however that happens.”

Again, Swift says it’s the lack of power dynamics that facilitates safe, effective interactions, even in some of the most dire situations. “Safety is a huge concern. So what really, really keeps us safe is that people know that we cannot force them to do something they do not want to do. We do not have that power. We do not want that power.” The group Swift’s with does not have the power of the state, and this lack of power is very compelling.

Could this be the future of public safety?


Police exist to protect and serve the public. To defend and to ensure the safety of individuals and of communities. To stop and prevent crime. But in the wake of national, consecutive #BlackLivesMatter protests and continuous instances of unarmed Black people being shot by the police, serious debates about the nature of policing are now mainstream. Jacob Blake, a 29-year-old African-American man in Kenosha, Wisconsin who was shot seven times in the back by police officers, is one of the most recent examples.

People are asking, is there an alternative to traditional policing? Alternatives, plural? There are a few models that are already here. Models that could form a blueprint for a different, and safer, future.

Chelsea Swift works for CAHOOTS (Crisis Assistance Helping Out On the Streets), which is, as you can see, both an acronym for a group and a play-on-words. Founded in 1989, this mobile crisis response organization is in “cahoots” with the police, but not in a way you’d expect. Founded in Eugene, Oregon, CAHOOTS runs out of the city’s police-fire-ambulance communications center and in Springfield, Oregon through an non-emergency number. CAHOOTS is a department of White Bird Clinic, a social service agency.

Workers are sent out in pairs (one medic and one crisis worker who has a requisite amount of experience working in mental health fields) and utilize trauma-informed harm reduction and de-escalation techniques on the ground. “CAHOOTS provides immediate stabilization in case of urgent medical need or psychological crisis, assessment, information, referral, advocacy & (in some cases) transportation to the next step in treatment,” its website reads. More than 60 percent of people it services are experiencing homelessness, and 30 percent live with what is called severe and persistent mental illness. Last year, CAHOOTS reports, out of the 25,000 calls it received, only 250 required police backup.

Teams do not carry weapons and, again, are not law enforcement. Even so, CAHOOTS makes it clear that its organization is not designed to replace the police. Rather, it responds to non-violent calls so that police officers do not have to.

According to White Bird Clinic, CAHOOTS saves the Eugene Police Department approximately $8.5 million every year.

Currently, CAHOOTS is working with communities in both Denver, Colorado and Olympia, Washington to develop similar programs, and is poised to assist in the creation of such programs in cities such as Albuquerque, New Mexico, NYC, Indianapolis, Indiana, and more. Additionally, U.S. Senator Ron Wyden plans on introducing a bill for implementing the CAHOOTS model across the country via. increased Medicare funding.

Other models treat violence as a public health issue that requires integrated community-based solutions. Cure Violence is a NGO founded by Gary Slutkin, M.D., an epidemiologist and former head of the World Health Organization’s Intervention Development Unit. It functions around the world and has numerous hubs in U.S. cities. It takes a drastically different approach to public safety than what traditional policing offers. “Fundamentally, I think people misunderstand violence to be about some kind of moral failing, ” says Charles Ransford, the Senior Director of Science and Policy at Cure Violence Global. It starts with individuals, he says, and their communities—and understanding the why behind violence, not just the what. “We really have to fundamentally understand what they’ve been through and what brought them to this point in their lives. Almost all the time [they] have been a victim of violence, there has been unaddressed, untreated, unjust violence that has been directed towards them.” Untreated violence towards an individual has a similar effect as an untreated wound or disease, he says. “They have a very textbook definition of PTSD, they’re showing mental trauma, they’re in a state of hyper-arousal because they themselves have been traumatized. So we have to understand the people themselves as having a health problem that has been going completely untreated.” Indvidual cases of untreated trauma create a heat map, similar to a heat map in an epidemic or pandemic. That’s why violence is a more like a contagion than a mark of moral weakness. A contagion that won’t be stopped without addressing the core issues and root causes.

Cure Violence has a three-pronged approach:

  1. Utilizing trained outreach workers and violence interrupters. They work to prevent violence by mediating potentially lethal conflicts in communities and following up with people when things have been resolved. They also work to prevent retaliation after violence has already happened. Trained workers visit the person who was shot (and their family and friends), for example, and work to comfort and cool down emotions to ensure that retaliatory violence does not emerge in the future.
  2. Engaging at-risk communities through culturally-appropriate outreach workers through a “meeting them where they’re at” approach. They connect individuals to necessary social and education services they may need, things like job training and drug treatment. And like in a public health approach, it centers on behavior change and access to resources.
  3. Mobilizing community members (like service providers, faith leaders, small business owners, and more) to help change social norms around violence, both before and after violent acts occurs through “conveying the message that the residents, groups, and the community do not support the use of violence.”

In the United States, Cure Violence programs have been implemented in over 20 cities, and such programs have resulted in up to 73% reduction in shootings and killings in some communities. The Center for Court Innovation’s Save Our Streets program is based on the Cure Violence and the Chicago CeaseFire model (a model that’s resulted in a 16-28 percent drop in shootings in some cities). It combats gun violence by changing social norms and using violence interrupters, education, street outreach, conflict mediation, and other grassroots approaches, all by respected community members. It operates out of NYC’s Bed-Stuy and Crown Heights neighborhoods in Brooklyn, and out of Mott Haven and Morrisania in the Bronx. Violence interrupters and outreach workers proactively defuse potentially violent situations that could escalate. According to a S.O.S. report, average monthly shootings in Crown Heights, Brooklyn decreased by 6 percent over the course of a year, whereas in surrounding areas, where the program was not implemented, shootings increased between 18 and 28 percent. Research also found that out of gun conflicts projected as being “very likely” to happen, 60 percent of said conflicts were completely resolved.

Although such programs are not perfect, general research indicates that more resources, community investment, visibility, and innovation are needed to increase success rates and provide meaningful alternatives to traditional policing, and thus, prevent police violence.

Let’s look at another model. The majority of interactions between the police and civilians happen on the roads. Things like traffic stops, then, are most likely to become potential officer-involved killings. A 2015 study from the  Department of Justice cites that out of the 50 million Americans who came into contact with the police, 25 percent of those cases were through being pulled over in a car. Other cases includes millions of car and traffic accidents. The fact that these officers who interact with motorists are armed means that the mere presence of a gun on the scene could turn the most benign incident lethal. The killing of Philando Castile, a non-violent, legal gun owner, and Sandra Bland illustrate this point. There are many other lesser-known cases such as that of Samuel DuBose, an African-American man who was pulled over by police in Ohio for a missing license plate, and was subsequently shot and killed in 2015.

In a town called Highways in the UK, the government employs Community Safety Officers in various of low-to-no violent situations. Unarmed officers in marked vehicles conduct many of the traffic stops and patrols. They also work to connect people in the community to the social needs they require, like taking them to the hospital or to a social worker if they need care. They have the ability to issue tickets for what are considered “minor disorders”, aka low-level crime and what’s considered to be antisocial behavior, etc. These officers, CSOs, still work with the traditional police and are still funded by central government. An evaluation of the program cites that due to the use of CSOs and other Neighbourhood Wardens, there was a 28 percent decrease in victimization levels (levels of people who were victims of crime).


Traditional policing’s current structure and role is untenable to a free, just society. Alternatives exist, and there are more models to be discovered, implemented, and improved. But it starts with awareness and community investment in a better future for ourselves.

POLICING DISABILITY

Cynthia Betubiza

July is Disability Pride Month

July 14, 2020

Garrison Redd was trying to catch the bus. He likes to travel around the U.S. to explore what’s outside his native New York. 

He waited at the stop in Kissimmee, Florida. And the bus finally came. But the driver refused to let him on and wouldn’t lower the ramp. 

Garrison asked the driver why repeatedly. But no answer and no explanation. He was being refused service. Garrison called the police, but the local sheriff said the driver has every right to refuse because, “It’s not like how it is in New York”. People on the bus were getting upset with the driver, confused and angry. 

The police left, and Garrison had a feeling about what was really going on. An all-too-familiar knowing. “I knew it had one or two things that it had to do with. It was either me being Black or me being disabled.”

Garrison Redd is a 31-year-old African-American man who uses a wheelchair. 

When he was 17, he was shot by a stranger while he was hanging out in front of his home in Brooklyn on an otherwise ordinary summer night. The bullets paralyzed him from the waist down.

Ever since, he’s experienced the compound effects of racism and ableism. “Being Black and a Black male… there’s tons of discrimination and oppression that comes with that specific demographic. And then with being disabled, that’s a whole other realm of discrimination and oppression.”

These effects have a concrete influence on his life. “I remember being denied for countless jobs and working hard at doing the things that I wanted to do, but however, I was told that I couldn’t due to my disability.”

Garrison Redd.

The data isn’t complete because some police departments do not report or release specific demographic statistics on police kills, and there’s no national database. But a recent report by the Ruderman Foundation found that between 25 and 40 percent of police shooting victims are people with mental illness or disability. Note, mental illness, cognitive, sensory, and emotional disabilities are a non-visible form of disability. This is present in in the case of Sandra Bland, who lived with depression. Or with Robert Ethan Saylor, a Maryland man with Down syndrome who was killed by three off-duty officers through asphyxiation. Or with George Zapantis, a 29-year-old man with bipolar disorder who died of a hear attack after being tasered repeatedly by the police. 

A study from the American Journal of Public Health found that people with disabilities are, as analyzed by Cornell University, “44 percent more likely to be arrested by age 28.” Compared to 30 percent, the probability of arrest for people who do not have disabilities.

For Black men with disabilities, the disparity is even deeper: 55 percent of Black men with disabilities had been arrested before the age of 28, compared to 40 percent of their white counterparts. 

A report from the ACLU shows how often people who are deaf are victims of police brutality. For example, a 64-year-old man named Pearl Pearson was severely beaten by patrol officers during a traffic stop in Oklahoma City. Pearson is deaf and diabetic, and was trying to pull out his placard indicating that, but was pulled from his car and repeatedly physically assaulted by the officers before he could do that. A sign language interpreter was never called to the scene. 

The Americans with Disabilities Act requires that police officers “ensure effective communication with individuals who are deaf or hard of hearing.” But this does not necessarily mean that police officers are required to call in an interpreter. The type of help called is left to the discretion of the officer on the scene. Leaving it to the officer’s discretion often results in no help being called at all.

It’s been 14 years since Garrison’s injury. Now he’s a Team USA Para Powerlifter, a disabled-rights advocate, a model, and a dancer. And he has a non-profit dedicated to assisting people with disabilities, especially those from low-income neighborhoods, achieve independence and success. 

Garrison grew up under the watchful eye of Mayor Bloomberg’s infamous stop-and-frisk policies, in which officers could randomly stop and search people under “reasonable suspicion”. This disproportionately affected Black and other people of color. A report found that between 2004-2012, Black people made up 52 percent of the stops. A large percentage of those stops happened in predominantly Black and other POC lower-income neighborhoods like East New York, Flatbush, and Garrison’s home of Brownsville, Brooklyn.

Garrison and his friends were repeatedly subject to these unprovoked searches. “Everyday, like coming home from school…the plain-clothes cops would hop out the cars…and they’d search us.”

This happened often enough that Garrison and his friends knew that to stay safe, they’d better shut up. “So even if you ask a simple question like, ‘why you stopped at me?’, that could really escalate into you being arrested for no apparent reason.” They had no choice but to comply. “Who do you complain to? I don’t know if you could tell 9-1-1 that the police are bothering [you].”

“If there’s like two or more black males in a car in Brooklyn, they’ll definitely pull you over. If you have a hooded sweatshirt on, you’re bound to get pulled over.”

The intersection of race, disability, and policing is deeply tied to issues of class and control, says Talila Lewis, an attorney, organizer and co-founder of HEARD (Helping Educate to Advance the Rights of Deaf Communities). “Disability is commonly understood through a white and wealth privileged lens. This perspective does not do justice to the complex ways that disability exists, arises in and is expressed through Black peoples’ bodies and minds.” And society’s collective understanding of disability is not intersectional, Lewis says, not acknowledging how multiple, compound identities are abused. “White mainstream disability rights communities operate within a rigid definition of disability—often refusing to acknowledge and honor Black disabled people due to internalized racism, classism and ableism…while Black communities often hold internalized ableism due to generations of anti-black disability labels being imposed upon us making us more vulnerable to all manner of violence once identified as disabled.”

Garrison and his friends would put their hands up as soon as they were stopped and roll down the windows. “If there’s like two or more black males in a car in Brooklyn, they’ll definitely pull you over. If you have a hooded sweatshirt on, you’re bound to get pulled over.”

At this time, it was against NYPD law for a regular officer to search someone with a physical disability. A specially-trained officer had to be brought in. But this hardly ever happened with Garrison. He’d have to go out of his way to inform the officers of the proper procedure in order to protect his own physical safety and prevent further injury. “Before I knew the law, I would get searched. But when I knew the law, I was able to say, ‘Hey, you can’t search me. I have a disability.’ Prior to that, even if they saw the wheelchair, if I didn’t say anything, they’d still try to search me.”

New York City changed mayors again and again, but these searches did not stop. Garrison continued being profiled and targeted—and mistreated as both a Black man and as a person with disabilities. The situations escalated, and the necessary help never came. 

Lewis, the attorney-organizer from HEARD, says policing people with disabilities, especially Black people with disabilities, has long relied on harmful  assumptions. “The United States government has long since used constructed ideas about disability, delinquency and dependency, intertwined with constructed ideas about race to classify and criminalize people. The result is those who live at the intersections of these targeted identities being made particularly vulnerable to policing systems.”

Garrison thinks that to address this issue and protect people like him, police departments across the board need to invest in educating all officers properly about working with people with disabilities. “I think they definitely need better training. If they had a better understanding of how disability comes as far as all the visible, invisible [types]… I think it would assist them in better with dealing with the disability community.” Garrison says that he would be willing to come to different departments and help teach the trainings, so that each officer would know how to adequately and safely respond.

Currently, much of police training is geared toward teaching officers how to gain control of a situation, teaching control/defense tactics such as weapon retention, firearm training, ground fighting, neck/carotid restraints, speed cuffing, and more. Other training includes skills such as report writing, patrol procedures, basic first aid/CPR, ethics and integrity, criminal/constitutional law, and so on. And as we learned during our deep dive into use of force policies, some police departments require de-escalation training. However, training for all officers for working with people with disabilities is not mandatory in many U.S. police departments

Some police departments do have these disability trainings on the books. But Lewis, of HEARD, says these aren’t effective. “Police have been receiving all manner of training for at least fifty years—including on race, class, disabilities. Yet we are seeing more, not less violence. There are bigger, more powerful forces at play that are operating to maintain this violent system—including hyper-militarization, hyper-criminalization, monetization of and investment in every aspect of policing and incarceration amid divestment from social services….”

Lewis says that violence is an inherent structure within policing, something that education can’t undo. “We cannot train racism, ableism, classism, patriarchy, white supremacy out of the system of policing because it is not a mere training shortfall or design flaw in the system that leads to disabled…low/no income, and other marginalized people to be abused and killed by law enforcement.”

No matter what the fight for change may look like, or how long that fight may last, Garrison is in it the long haul. “When they had the Montgomery Bus boycott, people came out and boycotted it for 368 days. That’s more than a year. So if that’s what we’re going to do to create change, that’s what we’re going to do.”

In the next Become All story, we’ll dive into more possible solutions.

USE OF FORCE

June 18, 2020

Let’s talk about use of force in police departments.

The news:

        Following weeks of nationwide protests, President Donald Trump signed an Executive Order on Tuesday that includes reforms such as incentivizing police departments to update their practices (including proving that use of force policies obey local, state, and federal law, incorporating de-escalation techniques, etc), creating a database for tracking incidents of excessive use of force, and more. 

Yesterday, Senate Republicans introduced The Justice Act, which increases disclosure requirements for no-knock warrants and use of force, incentivizes the banning of chokeholds, penalizes false reports, and other proposed reforms.

And earlier this month, following the death of Rayshard Brooks—an unarmed African-American man who was shot by police after being found asleep in his car—Atlanta Mayor Keisha Lance Bottoms announced reforms requiring the use of de-escalation techniques before the use of deadly or physical force.

What is use of force?

             The National Institute of Justice (part of the Department of Justice) defines it as the “amount of effort required by police to compel compliance by an unwilling subject.” Use of force is also accepted as a means of self-defense for officers, and is an accepted way for officers to protect a group of people, or another individual, from serious harm.

Use of force is also generally defined as a spectrum of different types of responses to a situation, a continuum. Police officers are expected to respond to a situation with the level of appropriateness that matches what is unfolding in front of them. If possible, they should escalate from one point in the continuum to another in a logical manner. Here are the components, according to the NIJ:

  • Officer Present—No force is used: The presence alone of an officer could be enough to de-escalate and, sometimes, resolve a situation
  • Verbalization—Force is non-physical: At first, an officer can issue calm verbal instruction or command. Then, if needed, they can give louder, more direct ones, like “Don’t move”
  • Empty-hand Control—Bodily force: Used to gain control of a situation at-hand. This can include the use of joint locks to restrain someone, or, even something like a kick or a punch to restrain someone
  • Less-lethal methods: Also used to gain control of a situation, but a step up. Methods include the use of pepper spray, Conducted Energy Devices (like tasers), blunt impact objects like batons, etc
  • Lethal Force: Use of lethal weapons to gain control and/or stop an individual’s actions. According to NIJ, such methods should “only be used if a suspect poses a serious threat to the officer or another individual”

Specific police departments have the power to add more detail to their use of force policies, giving their officers added guidance on what to do in the real world. Or, police departments can stick to the basics.

The origins of use of force:

The Supreme Court case Tennessee v. Garner (1985) involved officers who shot and killed an unarmed 15-year-old who broke into an unoccupied home. When the police officers arrived at the home, the suspect started running and then the police shot him. Here, the court decided that Garner’s death violated his Fourth Amendment rights (this amendment protects, among other things, people from unreasonable searches and seizures). The court then concluded that going forward, police officers were not permitted to use deadly force to prevent the escape of a suspect unless they suspected that the person “posed a significant threat of death or serious physical injury to the officer or others”. The Tennessee v. Garner (1985) decision set the precedent that in order for a seizure to be considered reasonable, two things must be balanced: the government’s interest in ensuring effective enforcement of the law, and the extent of the intrusion of a suspect’s constitutional rights.

Then in 1989, the Supreme Court case Graham v. Connor —involving a man who was handcuffed and injured by a police officer under false suspicion of stealing from a local store—established that the courts must also assess if the use of force is “objectively reasonable”.

What does “objectively reasonable” mean? The courts take the point of view of an officer who, most likely, must make split-second decisions under immense amounts of pressure. 

Were the actions taken reasonable to a level-headed officer who is under pressure, given the particular circumstance and facts in front of them when the incident occurred? In assessing this, there’s no room for “hindsight is 20-20” analysis. It has to be looked at considering what the officer knew as the situation was unfolding at the time.

There is a four-prong set of criteria for establishing objective reasonableness:

  1. What was the severity of the crime?
  2. Did the suspect present an immediate threat to the officer in question or to others?
  3. Was the suspect actively resisting arrest at the time?
  4. Was the suspect fleeing arrest at the time (or was a flight risk)?

In any given case, for example, the more severe the crime, the greater or more intrusive a force option can be. Same for if the suspect is an immediate threat, is resisting arrest, or is fleeing arrest.

Use of force complications:

Double standards:

             Like we learned last week during our deep-dive into qualified immunity, many of the laws and legal doctrines surrounding law enforcement operate under the belief that police officers deserve added protections and the benefit of the doubt because of the  dangerous work that they do. This can be well-intentioned, and can present harmful double standards. 

Take the self-defense justification for police use of force. Cynthia Lee is a Professor of Criminal Law, Criminal Procedure, and Professional Responsibility at George Washington University. In a 2018 paper, Lee argues that the proportionality aspect for police officers, as compared to civilians, is too imbalanced. She asserts that in most cases, an ordinary civilian who claims self-defense must prove in court that the “use of deadly force arose out of an honest and reasonable belief that she was being threatened with death or serious bodily injury.” In other words, “a civilian claiming self-defense needs to show that her use of force was proportional to the force threatened.” 

But this is not the same standard for police officers in many jurisdictions, “Many state statutes appear to have a proportionality requirement but do not actually require proportionality.” These statutes may permit a police officer to use deadly force if the officer reasonably believes such force is necessary to arrest a felon, prevent their escape—or to protect the officer involved from death or major bodily injury. That “or” is very important, as Lee explains in her paper, “One or more conditions may give these laws the appearance of a proportionality requirement, but if there is an ‘or’ before the last clause, an officer would be justified in using deadly force even if the suspect posed no threat of death or serious bodily injury.” Lee cites Alabama as an example,  “…the Alabama statute allows officers to use deadly force to make an arrest or prevent the escape of a fleeing felon so long as the officer believes that the use of deadly force is reasonably necessary to make that arrest or prevent that escape, even if the officer does not believe that the individual poses an imminent threat of death or serious bodily injury to the officer or others.”

             Professor Lee also addresses another double standard: necessity. For the average civilian charged with something like murder and trying to use a self-defense claim, they would have to prove that deadly force was the only option, or one of a very few available, to prevent death or serious bodily harm. They’d need to prove that a less deadly option wasn’t available at the time. It’s different for police officers. Lee points out that in many states, juries are not allowed to consider if an officer had less deadly alternatives at their disposal, which, while at times helpful, does present a serious problem. “It is understandable that courts concerned about juries second-guessing the police officer have tended to reject the idea of allowing the jury to consider whether less deadly alternatives were available and not used, but this automatic rejection does not seem appropriate given that assessments of reasonableness are supposed to involve a consideration of the totality of the circumstances.” Juries not fully considering the possibility of less deadly force options can make it difficult to tell if deadly use of force was necessary in the first place, Lee explains. “Moreover, if a less deadly alternative was available—if an officer could have effectuated the arrest, prevented the escape, or countered the threat without resorting to deadly force—it is difficult to conclude that the officer’s use of deadly force was necessary.”

Lack of data:

            There are programs and policies such as de-escalation and implicit bias training already in use in police departments across the country. But the data is mixed on their effectiveness, and in general, there is a lack of national, comprehensive data on the efficacy of such programs. 

Geoffrey P. Alpert is a professor at the University of South Carolina’s Department of Criminology and Criminal Justice. He says that reducing deadly use of force isn’t possible without the right numbers, even with these programs on the books at local police departments.“De-escalation training and implicit bias training, they’ve not been very well evaluated, so we don’t know how well they’ve worked. Without the data, it’s really hard to figure out how best to fix an issue when we don’t really know what the issue is.”

At the moment, there is no comprehensive, up-to-date national data collection system for such information (although recently introduced Congressional legislation and action from the Executive Branch may change that shortly. The FBI has tried to implement such a database, but as The Washington Post reported, only 40% of police departments actually participated).

This means that some police departments submit use of force data to the federal government, while others don’t—because they technically don’t have to. “They’re not under any obligation to submit anything, so they don’t. If you’re a small department, it costs you money to put it together…so they just don’t do it,” Alpert says. 

Ronald Tyler, a Professor of Law and Director of Stanford University’s Criminal Defense Clinic, agrees with the need for more data. “There really does need to be comprehensive reporting.”

While there are some successful case studies, like in Las Vegas’ police department, the general consensus is that, again, there is not enough data to make larger assessments on whether these programs truly work, as noted in a study from the journal Criminology & Public Policy, “Although assessment outcomes reveal few adverse consequences and provide some confidence that de‐escalation trainings lead to slight‐to‐moderate individual and organizational improvements, conclusions concerning the effectiveness of de‐escalation training are limited by the questionable quality of almost all evaluation research designs.”  

Need for independent accountability:

               In many cases in which police officers are investigated for excessive use of force or unnecessary deadly use of force, it is the local District Attorney (or a similar role) who carries out the investigation. This may make some sense on a bureaucratic level, but it presents a conflict of interest that can obstruct real justice. Scott Michelman is the Legal Director for the ACLU of D.C. He asserts that “having independent investigation and prosecution is very important because police officers and prosecutors offices regularly work together in support of obtaining convictions for crimes.” Furthermore, “Our state or local prosecutor’s office is not as likely to prosecute for civil rights violations against the same officers that they work with on a regular basis. Having an independent prosecutor whose job it is just to focus on these cases is likely to be more effective because that person won’t have other interests that depend on a good working relationship with the police department.”

Professor Tyler says that such external, independent accountability could come from citizen review boards. “It doesn’t do any good to have officers who are reviewed only by their peers.” Additionally, those citizen review boards need to be given the authority to do their jobs properly and in a timely manner. “It doesn’t do any good to have citizen review boards that are so emasculated that they don’t even get involved in an investigation until late, and then have no ability to compel all the evidence that they really need. An oversight board that actually has true oversight powers is a key part of this.”

Cultural perspective:

                Lastly, to decrease excessive and lethal use of force, a broader culture shift is needed. A culture shift in which consequences for police officers feel more real and concrete to them on the job. Professor Tyler says that real change can’t fully happen “until there is an actual shift in the balance of power, so that individual officers actually have to pause before they take action because they would recognize that their career could be on the line, their livelihood, maybe even that even their freedom could be on the line.” The culture right now, as it stands, is problematic. “We have a common cultural understanding that the officers get the benefit of the doubt  because it’s such a dangerous world out there.” But instead, he says, we need to shift our focus and look at a few other things, “the narrative needs to be about the sanctity of human life and the over-policing of communities.” 

If we switch our perspective and start focusing on these issues, he says, there could be better outcomes for everyone. “If the narrative goes to something like that, then that guides decisions that are made about what we need to put in place to correct the problem.”

___________

 

QUALIFIED IMMUNITY

June 9, 2020

        This week, several House Democrats proposed new legislation to combat police brutality in the wake of ongoing protests. The Justice in Policing Act of 2020 outlines reforms such as the prohibition of racial, religious, and discriminatory profiling, a ban on chokeholds and no-knock warrants on the federal level, a new National Police Misconduct Registry, and reforms to qualified immunity so that “individuals are not barred from recovering damages when police violate their constitutional rights”. Some say qualified immunity reforms could be the bill’s biggest, and most complicated, provision. 

Before that, on June 4th, Congresswoman Ayanna Pressley and Congressman Justin Amash introduced the Ending Qualified Immunity Act.

Qualified immunity, a legal doctrine whose origins date back decades, has received much popular attention in the wake of the killing of George Floyd, an unarmed African-American man in Minnesota, by a police officer and the subsequent nationwide protests. It is one of the most recent examples in a long string of deaths of unarmed black people in America. 

Qualified immunity is having a moment. But, what is it, exactly?

What is Qualified Immunity?

Qualified immunity is legal defense, created by U.S. federal courts, that protects government officials from both liability and damages in civil cases. It has a two-prong test: 

  1. The government official must have violated someone’s constitutional rights
  2. In violating someone’s constitutional rights, the government official must have violated a “clearly established law” while doing so

Here’s an example. In the case West v. The City of Caldwell (2011), a case that has been submitted to the Supreme Court and may be reviewed soon, police arrived at the Idaho home of Shaniz West without a warrant. They were looking for her ex-boyfriend and asked to “get inside” her home. West allowed them in. 

In their search, the police destroyed much of West’s personal property. They also threw tear gas through the windows, something West had not consented to. The use of tear gas made her home uninhabitable for two months.

The ex-boyfriend was not home.

In a series of lawsuits, West asserts that the police officers violated her constitutional rights. The qualified immunity defense has repeatedly been used to protect the officers involved.

To understand qualified immunity, one must understand that our legal system relies heavily on the use of precedents set by previous court decisions.

In West v. The City of Caldwell, the qualified immunity justification is that there is no previous legal case that sets the precedent establishing that the way the officers violated her rights was illegal at the time. In other words, the police officers could not have known that they were violating her rights when they took that exact action (tear gassing her home)—because there has been no previous court case, with similar enough details, that would inform them that what they did was wrong.

William Baude is a law professor at the University of Chicago Law School who specializes in constitutional law, the federal courts, and conflicts of law. He says that qualified immunity played a role in that second criteria, clearly established law. “There are dozens, hundreds of cases saying you can’t go into someone’s house without a warrant. But of the specific examples, there just doesn’t happen to be one that involved a fugitive and a tear gas grenade.” Baude explains that qualified immunity relies on how a “reasonable officer” would react and think in a situation, “We need some case that’s like this one so that a reasonable officer would know, ‘Okay, no tear gas grenades through the windows. Got it.’”

Katherine MacFarlane is an Associate Professor of Law at the University of Idaho. Previously, she worked as an Assistant Corporation Counsel in the New York City Law Department, and, at times, defended police officers. She, like William Baude, is also critical of qualified immunity’s applications. “You’re never really going to have a prior case that’s exactly like the one in front of you. So what that results in, practically, is there’s going to be a finding that, ‘Well, there was no way to put this particular officer on notice that what they did was a clearly established violation.’”

This illustrates the “clearly established law” criteria of the two-prong test. There must be a prior legal case with similar, if not exact, details that creates the precedent specifying that a certain action is wrong. If not, a government official, including a police officer, cannot be liable because, as the doctrine says, how could they have known?

In criminal justice, the intent of qualified immunity is to protect police officers from copious lawsuits, given the fact that they often must make split-second decisions in tense, highly-dangerous situations. The rationale is that in those moments, any reasonable officer does not have the time nor the luxury to stop and think about prior legal precedents in the heat of the moment. 

Taking that into account, qualified immunity presents a double-standard. Police officers study laws and procedure vigorously in order to pass the numerous tests required to make it into a police academy and then work up the ranks. The average citizen does not. “For ordinary citizens who are worried about being charged with a crime, ignorance of the law is no excuse. This is a special benefit that police officers get and ordinary people who are less familiar with the legal system don’t get,” Baude says.

Where did Qualified Immunity come from?

         In 1871, during the post-Civil War Reconstruction Era, Congress passed the Civil Rights Act of 1871 (also known as the Klu Klux Klan Act), which created Section-1983: a landmark legal code that allows anyone to sue, in federal court, someone who violates their Fourteenth Amendment rights, including equal protection under the law and due process. 

It was designed to protect the rights of newly freed slaves and allow them, or anyone, to sue members of groups like the Klu Klux Klan for abuses. It was a historic measure enacted as the country began to, slowly, address the painful sin of slavery.

Despite its enactment in 1871, Section-1983 was relatively dormant for a long time. Then in 1961, the case Monroe v. Pape—a case in which a black family sued local police officers for breaking into their Chicago home without a warrant, forcing them to stand naked in their living room while much of their personal property was destroyed, and detaining James Monroe, the father, for hours—breathed new life into Section-1983, clarifying that it could be used to sue government officials for violations of constitutional rights.

Then in 1967, with such rights in place, the Supreme Court introduced the idea of qualified immunity. In the case Pierson v. Ray, the court upheld that government officials who violated constitutional rights but still acted in “good faith” could assert qualified immunity as a defense in civil suits.

Several other cases continued to clarify the definition of qualified immunity. Then in 2001, the case Saucier v. Katz established the two-prong test that is now the standard. Again:

  1. The government official must have violated someone’s constitutional rights
  2. In violating someone’s constitutional rights, the government official must have violated a “clearly established law” while doing so

Implications of Qualified Immunity:

             Over the years, case by case, qualified immunity has become very complex. Civil cases are first filed in local district courts, and this is where most of the decisions are made (they can be appealed). Even still, these courts largely follow the Supreme Court’s guidance. And such guidance is getting dicier, says Joanna Schwartz, a Professor of Law at UCLA who specializes in police accountability and public interest lawyering. “The Supreme Court has given very shifting guidance to courts about what clearly established law means and has also progressively narrowed the defense over the years of its existence.” In particular, Supreme Court rulings are actively loosening the way the classic two-prong test can be administered, making it less rigorous, and, therefore, giving more leeway to government officials over everyday plaintiffs. This is exactly what happened in 2009’s Pearson v. Callahan ruling. “Recently, they told lower courts that they can grant qualified immunity without ruling on whether the conduct was unconstitutional. The Supreme court is telling plaintiffs, ‘You have to find a case where a court has held really similar conduct to be unconstitutional.’ And at the same time, telling lower courts, ‘You don’t have to rule on whether the conduct was unconstitutional,’” Schwartz says. 

It can get pretty confusing. To break it down; If you can’t find another case that has similar enough details to the one at hand, then that can be it—you can throw out the case at hand using the qualified immunity defense. No need to assess the first part of the test: whether someone’s constitutional rights were, in fact, violated. You don’t have to consider that anymore.

Qualified immunity is used more and more as a defense in civil suits against police officers. A recent Reuters study created and analyzed a database of district, appellate, and Supreme Court cases. On the appellate level, out of 529 circuit court opinions (published from 2005-2019), the study found that appellate courts had a “growing tendency, influenced by guidance from the Supreme Court, to grant police immunity.” Furthermore, “More than ever, they are ignoring the question of whether cops have violated a plaintiff’s constitutional rights, thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police.” Unmistakably, it is difficult to win a civil suit against a police officer. 

The Reuters study reinforced many expert opinions on the nearly-impossible burden placed on plaintiffs to find precedent-setting cases with almost identical facts. “The failure to set precedents is particularly challenging for plaintiffs because the data also showed that appellate courts are increasingly requiring a nearly identical case from the past to serve as a precedent that clearly establishes an officer’s actions as illegal – a high standard that again makes it hard to win against the police.”

On the Supreme Court level, Reuters investigated the claim that the Supreme Court is more likely to intervene in requests put forth by officers than by civilians. The study compared Supreme Court and Westlaw records to find use-of-force cases that mentioned qualified immunity from 2005 to 2018. The study showed that out of 121 relevant petitions gathered, an officer “was 3.5 times more likely than a civilian to have a petition accepted.”

Supreme Court Justice Sonia Sotomayor has spoken out against qualified immunity’s growing influence in dissents, “By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”

But, all the data and cases on the table, qualified immunity’s effectiveness in achieving its intended aim in court is not as simple as one may think. 

In a paper for the Yale Law Journal, Professor Schwartz says that the qualified immunity doctrine is not effective at achieving its desired goal of shielding “government officials from burdens associated with participating in discovery and trial”. She found that across the five districts she analyzed, “…just thirty-eight (3.9%) of the 979 cases in which qualified immunity could be raised were dismissed on qualified immunity grounds.” Furthermore, “…when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to burdens associated with discovery and trial—just seven (0.6%) were dismissed at the motion to dismiss stage and thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds.”

This may sound counterintuitive or surprising—a legal doctrine that has such influence on law enforcement and its relationship to the public is not actually successfully used as a defense in court all that often. 

Does that render qualified immunity a non-issue for those concerned with police brutality and criminal justice? Professor Schwartz says, not so fast. “Although qualified immunity is the reason that relatively few cases are dismissed, the doctrine is still having an important impact on lawsuits.”

The mere fact that qualified immunity exists at all, has been used, and still is being used—no matter the success rate—sends a dangerous message that could be empowering government officials to act more recklessly, and, at times, dangerously. “The Supreme Court and lower court decisions granting qualified immunity send a troubling message to law-enforcement that they can violate people’s rights without consequence and send a message to plaintiffs that their rights do not matter,” Schwartz says. 

Also, as noted in the Reuters study, qualified immunity’s influence is still growing in appellate courts.

Qualified immunity is, therefore, only one of many systemic barriers to keeping law enforcement accountable and ensuring justice for victims and their families. The data, all together, points to something much bigger “…these numbers actually mean that there are many many other barriers to relief in these cases.”

Whether legislation to reform policing in America, including reforming or even abolishing qualified immunity, will pass both houses of Congress is unknowable. But, lawmakers and advocates alike should keep this in mind: qualified immunity is only one piece of a much larger puzzle.