by: the DMGS Team

Last week, we examined the legislative response to George Floyd’s killing and recent protests in Minnesota, Michigan, and Pennsylvania. We also looked at what action the federal government is taking and proposing on different police reforms.

In the past week, there are numerous updates on police reforms and what actions are being taken at both the federal and state levels.  Are different states proposing similar laws to what we discussed last week?  Are there different proposals being offered?  What updates are there on the federal side?

California

In the Golden State, there have been numerous proposals offered at both local and state levels of government.  Governor Gavin Newsome indicated that he would sign a bill banning chokeholds, but does not support disbanding police departments or eliminating their funding.  However, the Governor does support re-imagining law enforcement and their responsibilities.

California did act on police reform last year, well before recent protests swept across the country.  Assembly Bill 392, signed into law by Governor Newsome, changed the law to require officers to consider nonlethal alternatives and to only shoot when absolutely “necessary,” making significant use-of-force reforms.  The Legislature also passed Senate Bill 230, which requires law enforcement agencies to provide guidelines on the use of force, utilize de-escalation techniques and other use-of-force alternatives, guidelines for the use of deadly force, and factors for evaluating and reviewing all use-of-force incidents.

California Attorney General Xavier Becerra also announced an agenda for police reform:

1. Agencies should require officers to intervene if another officer uses excessive force;
2. Prohibit chokeholds, strangleholds, and carotid restraints;
3. Officers should use de-escalation before using force;
4. Agencies should provide guidance on proportionality; 
5. Verbal warnings should be required before using force; 
6. Officers should be prohibited from discharging a firearm at someone in a moving vehicle or from their own moving vehicle (excepting a situation to end an imminent threat to human life); 
7. Use deadly force as a last resort; 
8. Comprehensive reporting on the use of force and threats of force should be created; and
9. Agencies should train canines to alert by barking instead of biting as a first response.

Becerra also indicated support for the following criminal justice reform legislation:

1. Decertify peace officers for serious misconduct;
2. Expand reviews of law enforcement policies and practices;
3. Require policies and training on bias by proxy;
4. Place clear limits on crowd control techniques during protests or mass gatherings;
5. Prohibit the use of pepper spray against children in juvenile detention; and
6. Reexamine the role of police in addressing both homelessness and mental health crises.

Outside of police reforms, Assembly Bill 3121 would establish the Task Force to Study and Develop Reparation Proposals for African Americans. The bill passed the State Assembly last week and is awaiting consideration by the Senate.  Will the state give reparations?  Will the federal government act as well?  The federal government has previously given reparations in 1988 to victims of Japanese internment camps during the Second World War.

At the local level, the Los Angeles City Council scheduled to meet Tuesday to discuss cutting between $100 million and $150 million from the Los Angeles Police Department’s proposed budget for 2020-21. The proposed budget for the LAPD is approximately $1.86 billion, and some in the community were calling to cut the Department’s budget by 90% and instead allocating those funds to mental health and housing services. Mayor Eric Garcetti opposes this proposal and instead wants to shift some money to addressing health and education issues in predominantly black communities.

Meanwhile, San Francisco Mayor London Breed announced reforms:

1. Demilitarize police;
2. Police will no longer respond to non-criminal activity (replaced by trained, unarmed professionals);
3. Address police bias and strengthen accountability; and
4. Redirect resources from the San Francisco Police Department’s upcoming budget to support the African American community.

Maryland

Governor Larry Hogan has expressed an openness to police reform but is opposed to taking money from police budgets to support other community needs.  The Governor has not explicitly endorsed any reforms but is on the record as saying he will review any proposals sent to him by lawmakers.

As Maryland lawmakers prematurely ended the 2020 legislative session back in March due to COVID-19, what bills could make it to Governor Hogan’s desk in the next legislative session? 

Speaker of the House of Delegates Adrienne Jones last week set up a bipartisan task force to review policing issues. Their goal is to produce proposals for the next legislative session.

Further, State Senator Jill Carter recently said a special session on police reform is unlikely, and instead hopes for hearings on bills this fall with votes coming in January during the next session. Senator Carter is also the sponsor of Senate Bill 1066 (Anton’s Law). The bill, named after Anton Black, addresses the use of force by police officers as well as specifying that records related to formal complaints of job-related misconduct made against a police officer are not personnel records, opening them up for public disclosure. A companion bill in the House, House Bill 1090, was also introduced. Neither bill advanced before the legislative session ended in March.

Another bill introduced this past session was House Bill 1221, aimed at improving the disclosure of police records. While the bill never made it out of the House before the legislative session ended, it did receive a hearing and vote in the House Judiciary Committee. 

Further, State Senate Judicial Proceedings Chair William Smith outlined proposals for police reforms to address the following concerns:

1. Officer training;
2. Use of force;
3. Militarization of police;
4. Prosecutorial intervention;
5. Liability caps;
6. Disclosure of law enforcement personnel records; and
7. The Law Enforcement Officers Bill of Rights.

Through addressing these concerns, Smith hopes to prohibit chokeholds, require comprehensive reporting in the event or threat of excessive force, and requiring officers to intervene when they see excessive force being used by fellow officers, amongst other goals. the Judicial Proceedings Committee will hold hearings this fall.

New York

New York Governor Andrew Cuomo signed into law legislation increasing police accountability.  One of the major changes requires police officer to report within six hours of discharging their weapons.  The bill S. 2575B / A. 10608 makes it mandatory for police officers to report any incident in which their weapon was fired and a person could have been struck by a bullet, regardless of whether they were on duty.  Cuomo also signed a bill (S. 6601B / A. 8226) that requires police officers to attend to the medical and mental health needs of those being arrested or otherwise in custody.  Other new laws require courts to compile and publish racial and other demographic data on all low-level offenses (S. 1830C / A. 10609), clarify that a person not under arrest or in custody may record police activity (S. 3253A / A. 1360A) and maintain custody and control of the recording.

Colorado

Colorado Governor Jared Polis indicated approval of major legislation (S. B. 217) to reform policing in the state.  The bill would ban chokeholds and carotid holds.  The legislation would also mandate that a police officer is only permitted to use deadly force when there is an imminent risk of danger to human life.  The measure also would restrict the use of tear gas and rubber bullets.  Similar measures have been introduced in Minnesota and Oregon.

The bill:

• Requires officers to wear body cameras and record interactions with members of the public.  Footage of incidents involving allegations of police misconduct must be released to the public in 21 days.
• Orders all law enforcement agencies to track and publicly report data for public contacts, including use of force, civilian searches, forced entries into homes, and discharges of firearms.  The data must include demographic information on race, ethnicity, sex, and age of the person contacted.
• Prohibits hiring of bad actors — once officers are convicted of, or plead guilty to, any inappropriate use of physical force, their certification would be revoked.  Officers who are found untruthful, terminated for cause, or decertified would be listed in a public database to prevent them from moving from one agency to another.
• Allows victims of police misconduct to sue within a two-year statute of limitations, and officers convicted of misconduct would no longer be shielded by the doctrine of qualified immunity.  It would make the failure to intervene during another officer’s inappropriate use of physical force a class 1 misdemeanor.

Updated Federal Response

House

The House Judiciary Committee meets Wednesday, June 17, to markup the Justice in Policing Act of 2020 (H.R. 7120) that would curtail the transfer of military equipment to police departments, make it easier for an individual to sue police officers for alleged rights violations, criminalize chokeholds by police, and make lynching a federal crime.  The bill would authorize $750 million over three years for states to set up independent prosecution programs for cases involving an officer’s deadly use of force and $300 million over three years for state investigations into abusive police practices.  It would also authorize funding for several reports and the collection of data on use of force and racial profiling.

Senate

In the Senate, the Judiciary Committee held a hearing on the Police Use of Force and Community Relations on June 16.

Majority Leader Mitch McConnell (R-KY) has tasked Senator Tim Scott (R-SC), the sole black Republican in the chamber, with putting together a legislative package to address police reform.

One proposal that Scott indicated support for is the ban of chokeholds, noting it is a policy “whose time has come and gone.” Other elements included in the House bill that Senator Scott indicated support of include the federal lynching ban, increased requirements for body cameras, increased anti-bias training, and greater oversight of local police departments by the federal government.

A draft of Senator Scott’s bill, obtained by CNN, outlines the following:

1. The George Floyd/Walter Scott Notification Act – would require reporting of uses of force that cause death or serious injury to FBI data collection (this would be tied to grant eligibility); 
2. The Breonna Taylor Notification Act – would require states to provide the use of no-knock search warrant data (also tied to grant eligibility); 
3. Make Police Recruiting Reflective of Community – would expand Department of Justice COPS grants to hire recruiters & law enforcement officer candidates who have racial and ethnic characteristics that are like the community;
4. Increase Body-Worn Camera Funding – would increase funding (exact number TBD) for the Body-Worn Camera Partnership Program, require law enforcement to wear body cameras during arrests and detentions, and would provide training on using and storing video;
5. Penalties for Failure to Use Body-Worn Cameras – would reduce grants for states that do not enact policies penalizing failure to use body-worn cameras;
6. Police Employment Record Preservation – would require states to maintain a system for sharing records of law enforcement officers and requires law enforcement agencies to search the system and obtain applicants’ records while making a hiring decision (records will include commendations, complaints, disciplinary records, and internal investigations);
7. Justice for Victims of Lynching Act – would create a new crime of “conspiracy to commit a hate crime” to the criminal code;
8. Commission on the Social Status of Black Men and Boys – the Commission would be established within the U.S. Commission on Civil Rights and would be tasked with conducting a systematic study of the conditions affecting black men and boys.  The study shall include homicide rates, arrest and incarceration rates, poverty, violence, fatherhood, mentorship, drug abuse, death rates, disparate income and wealth levels, school performance at all levels (including postsecondary education), and health issues;
9. The National Criminal Justice Commission Act – would create a new, independent commission tasked with conducting a comprehensive review of the criminal justice system and make recommendations for criminal justice reform; and
10. De-escalation Training – would require grant funding to be tied to required training on alternatives to uses of force and de-escalation tactics.

Senator Scott’s draft of the Justice Act also notes the following topics are in the developmental phase:

1. Establishing a national group to develop “Best Practices” guidelines for policing tactics;
2. Establishing Use of Force review boards where citizens can assist police departments in reviewing use-of-force incidents; and 
3. Grant funding that requires training on policies which impose a duty on officers to intervene when they witness another officer using excessive force.

Initial reports indicated that the Senate was unlikely to take up any police reform bills before they adjourned for the July 4 recess, which Senator Scott has opposed.  However, Majority Leader McConnell has since said that he wants the Senate to take up a vote on a police reform bill before the July 4 recess. Senator John Thune has also voiced support for taking up the bill before the recess.  Will that happen?  Time will tell.

Executive

Further, President Trump announced an Executive Order on police reforms.  The order addresses credentialing and certifying police departments, increasing the sharing of information to track officers with excessive use-of-force complaints, creating co-respondent services focused on mental health, drug addiction, and homelessness, and banning chokeholds by the police except for when an officer’s life is at risk.

Qualified Immunity Update

Last week, we addressed qualified immunity and the Supreme Court of the United States (SCOTUS).  Earlier this week, the Court declined to hear any cases on the qualified immunity doctrine. Appellate courts use a two-part test to determine whether to grant immunity to law enforcement officers accused of using excessive force: in the first part, the court determines whether law enforcement violated the Fourth Amendment through excessive force. If the answer is yes, the court may move to the second part of the test; if no, the court immediately grants qualified immunity.  However, since 2009, the Supreme Court has allowed appellate courts to skip the first part and immediately grant qualified immunity, which courts have increasingly chosen to do.

“The Supreme Court’s failure to reconsider this flawed legal rule makes it all the more important for Congress to act,” House Judiciary Committee Chair Jerrold Nadler (D-N.Y.), Congressional Black Caucus Chair Karen Bass (D-Calif.), and Constitution, Civil Rights, and Civil Liberties Subcommittee Chair Steve Cohen (D-Tenn.) said in a joint statement.

A Reuters report analyzed 529 federal circuit court opinions from 2005-2019 on appeals of cases where cops who were accused of using excessive force raised a defense of qualified immunity. The report showed a growing tendency of the courts to grant police immunity, influenced by SCOTUS guidance.  From 2005-2007, the courts, in excessive force cases against police, favored the plaintiff over law enforcement 56% of the time, compared to 44%. However, from 2017-2019, the numbers almost flipped: the courts favored law enforcement 57% of the time, compared to 43% for plaintiffs in excessive force cases.

Senator Scott has said that he and Republicans oppose an end to qualified immunity.  The White House similarly did not include any changes to the doctrine in its executive order.