“California is one of only five states that does not have a formal process for decertifying bad cops to keep them from finding patrol work. And it looks like it’s going to stay that way.
In the middle of a massive push for policing reforms in America, law enforcement unions have defeated S.B. 731, a California bill that would have created a commission to hear cases of cops who have engaged in misconduct and determine whether they’d be stripped of their certifications.”
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“Several law enforcement unions in the state say they want a process in place to decertify bad cops. They even made a web page to insist that they support things like a database of officers who have been fired for misconduct, and “a fair, reasonable and workable decertification process.” But they object to Bradford’s commission because only three of the nine members would be police officers. Four of the other members would be members of nonprofit or academic institutions and community-based organizations that have experience on “issues related to police misconduct.” One member would be a citizen who has been a survivor of police misconduct (or a relative of somebody who did not survive misconduct). And one would be an attorney with “experience involving oversight of police officers.” Police unions determined that this newly created board would be, in the Associated Press’s words, “inherently biased against officers.””
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“The cops and the unions want too much control over what is and is not considered “misconduct.” Time and again, Americans have seen these organizations use their power to defend and make excuses for terrible police behavior. Their ideal form of “due process” for police officers facing misconduct allegations is an ostensibly civilian commission that police control.”
“Tucson handyman Kevin McBride was hard at work one Friday last May when his girlfriend offered to get him a cold drink from a convenience store. She took his Jeep, his sole means of transportation and the basis of his livelihood. Then the cops took his Jeep, and local prosecutors are now demanding a $1,900 ransom before he can get it back.
This sort of shakedown would be clearly felonious if ordinary criminals attempted it. But as McBride discovered, it is legal under Arizona’s civil asset forfeiture law. The cops said McBride’s girlfriend had used his Jeep to sell a small amount of marijuana to an undercover officer for $25. Although the charges against her were dropped, the Jeep is still being held as a party to that alleged offense, and McBride has to pay for the privilege of getting his property back.”
“A federal judge this week gave a blistering rebuke of qualified immunity, the legal doctrine that makes it difficult to sue police officers in federal court when they violate your civil rights.
“The Constitution says everyone is entitled to equal protection of the law—even at the hands of law enforcement,” wrote Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a majority decision released yesterday. “Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.””
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“to overcome qualified immunity, a plaintiff must show that the defendant’s misconduct had been “clearly established” by existing case law—the standard pulled out of thin air by the Supreme Court in Harlow v. Fitzgerald (1982). In practice, this criterion requires that plaintiffs show a public official’s misbehavior is prohibited almost verbatim by a previous ruling from the same federal circuit or from the Supreme Court. That requirement is nearly impossible to meet. “This Court is required to apply the law as stated by the Supreme Court,” Reeves writes. “Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.”
It is not unheard of for a federal judge to show disdain for his own ruling. They are required to enforce precedents established by the Supreme Court, even when doing so defies common sense. (Federal judges can also be seen decrying the mandatory minimum sentences they are required by Congress to impose on defendants who meet statutory criteria.)
A review of current qualified immunity decisions is instructive. The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff’s deputy who shot a 10-year-old boy while aiming at the child’s non-threatening dog; a prison guard who forced a naked inmate to sleep in cells filled with raw sewage and “massive amounts” of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.”
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“The Supreme Court has declined to hear a slew of qualified immunity cases and instead volleyed responsibility back to Congress. While such decisions should arguably be made by Congress, the Supreme Court created the very problem it now wants no part in solving.
“I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society,” Reeves writes. “Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of qualified immunity.””
“The ACLU’s complaint, filed on behalf of the Portland Mercury, eight journalists, and two observers working with the ACLU, alleges that federal agents stationed at the Mark O. Hatfield U.S. Courthouse have joined local police in violating those principles. On July 12, for instance, federal officers shot photographer Mathieu Lewis-Rolland 10 times with “impact munitions” that left “severe lacerations, welts, and bruises all over his upper body.” According to the Geneva Guidelines on Less-Lethal Weapons and Related Equipment in Law Enforcement, such projectiles “should generally only be used in direct fire against the lower body of a violent individual when a substantial risk exists of immediate serious injury to either a law enforcement official or a member of the public.”
The complaint alleges many similar abuses by Portland police, including the gratuitous use of tear gas and rubber bullets, unprovoked beatings, unlawful arrests, and other interference with activities protected by the First Amendment. The ACLU says the plaintiffs who have suffered such abuse were clearly identified as journalists or legal observers.
The lawsuit also complains that Portland police have routinely violated Simon’s June 9 order barring them from using tear gas at the protests except when “the lives or safety of the public or the police are at risk.” Simon said tear gas should not be used simply “to disperse crowds where there is no or little risk of injury.” Portland Mayor Ted Wheeler, who is also the police commissioner, got a taste of his own medicine on Wednesday night, when he was gassed by federal officers while vainly trying to show protesters that he was united with them in opposing the Trump administration’s response to the demonstrations.
The protests in Portland have been happening every day since May 28, three days after a Minneapolis police officer suffocated George Floyd. The federal officers, who according to an internal memo have not been trained in controlling riots or mass demonstrations, were deployed by the Trump administration this month, ostensibly to protect the courthouse and other federal property. But as Nancy Rommelman notes, the federal presence seems to have inflamed the situation, provoking the vandalism and assaults on the courthouse that the administration now cites to justify its involvement.”
“A police narcotics unit in Springfield, Massachusetts, regularly uses excessive force on suspects, including punching them in the face, and frequently fails to document the incidents or falsifies reports, the Justice Department’s Civil Rights Division said in a report”
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“The report also found it was “not uncommon for Narcotics Bureau officers to write false or incomplete narratives that justify their uses of force.”
Justice Department investigators cited one instance where an injury report of an arrestee only noted “small cuts to the face.” However, pictures of the man “clearly show severe contusions and dark bruising on the right side of his face, a large black eye, a gash on the bridge of his nose, and additional abrasions on the left side of his face and the left side of his nose.”
Because of rampant underreporting of use-of-force incidents, the use of vague language to obscure the extent of injuries, and the outright falsification of police reports, the Justice Department concluded that excessive force incidents were likely more widespread than the many violations captured in its report.
And there was little to no discipline for officers involved in those civil rights violations. Because of poor reporting requirements, lax supervisor oversight, and lazy internal affairs reviews, the report found that there was not a single sustained excessive force finding against a member of the narcotics team over the past six years.”
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“The Justice Department’s investigation of the Springfield Police Department is notable because it is, so far, the only probe of an entire police department launched by the Justice Department under Trump.
The Obama administration launched a record number of so-called “pattern or practice” investigations into systemic civil rights violations by police departments, including in Baltimore, Chicago, and Ferguson, Missouri.
However, the Trump Justice Department, especially under former Attorney General Jeff Sessions, backed away from the aggressive use of these investigations. Sessions said he never read the Justice Department’s scathing report on civil rights violations by the Chicago Police Department, but he nevertheless said such investigations unfairly maligned whole police departments and improperly used the power of the federal government to coerce municipal governments into court-enforced settlements, called “consent decrees.”
U.S. Attorney for Massachusetts Andrew Lelling said in a Justice Department press release that the Springfield Police Department and the city “have fully cooperated with this investigation and have made clear their commitment to genuine reform.””
“On a Monday night in August 2016, Tony Timpa, a 32-year-old Dallas resident, called 911 to report that he was “having a lot of anxiety” about a man he feared would harm him. Timpa mentioned that he had received several psychiatric diagnoses—schizophrenia, depression, bipolar disorder, and anxiety disorder—but had not taken his medication that day. After police arrived in response to that call and other reports of a man behaving erratically near 1728 West Mockingbird Lane, Timpa yelled, “You’re gonna kill me!” He was right.
Timpa, who had already been handcuffed by a security guard, died while being pinned to the ground face down by several police officers for about 15 minutes, during which time he pleaded with them to stop and cried for help over and over again. The officers, while intermittently showing signs of compassion, joked about Timpa’s predicament and the possibility that they had killed him.
This week, in a decision that vividly illustrates how difficult it is to hold cops accountable for misconduct under a federal statute that authorizes lawsuits against government officials who violate people’s constitutional rights, a federal judge granted qualified immunity to those officers. Whether or not they violated Timpa’s Fourth Amendment rights, U.S. District Judge David Godbey ruled, the law on that point was not “clearly established” on the night he died.
The circumstances of Timpa’s death are broadly similar to what happened when George Floyd was suffocated by Minneapolis officers on May 25, a horrifying incident that provoked nationwide protests and calls for police reform. One of the proposed reforms is the abolition of qualified immunity, a court-invented doctrine that blocks federal civil rights claims when plaintiffs cannot identify sufficiently specific precedents. Godbey’s decision shows how formidable that barrier is.”
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“Recall that the cops ostensibly were there to help Timpa, who was obviously freaking out and according to his family was “suffering drug-induced psychosis.” The officers clearly recognized that Timpa was intoxicated, since they repeatedly asked him what drug he was on, and he told them he had taken cocaine. Yet they proceeded to restrain him for 15 minutes in a position that made it difficult for him to breathe. Given the circumstances, Timpa’s “resistance,” which the officers repeatedly described as “squirming,” was perfectly understandable. Godbey’s framing suggests that someone who panics because he is being smothered to death thereby justifies the use of force that caused him to fear for his life.”
“Department of Homeland Security (DHS) agents and U.S. marshals dressed in military gear and brandishing large weapons have been stationed in Portland since around the start of the month, per an executive order from President Donald Trump. The feds are allegedly there to protect national monuments and guard against potential domestic terrorism.
Instead, this deliberately intimidating gaggle of outside “law enforcement” officers has been agitating peacefully assembled people who are merely exercising their constitutional rights. This has included shooting one man directly in the head with an impact munition of some sort (sending him to the hospital and necessitating facial reconstruction surgery) and, reportedly, forcing protesters into unmarked vans.
According to an internal Homeland Security memo, “federal agents facing backlash for their militarized approach to Portland were not specifically trained in riot control or mass demonstrations,” The New York Times reports.
That doesn’t bode well for the idea that they were sent in with mitigation in mind.
Despite federal agent actions last week, large Portland protests continued over the weekend…
…and so did federal agents acting in unnecessarily hostile and abusive ways ”
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“Portland Mayor Ted Wheeler told CNN on Sunday that “they’re not wanted here, we haven’t asked them here, in fact we want them to leave.””
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“Oregon Gov. Kate Brown has suggested the feds’ presence was a “deliberate effort to provoke.” She told The Washington Post “that her contacts with Trump administration officials about the situation had convinced her that ‘they are not interested in problem solving,’ and this has ‘nothing to do with public safety.'””
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“Oregon’s Department of Justice is suing the DHS, the U.S. Marshals Service, U.S. Customs and Border Protection, and the Federal Protection Service. The lawsuit, filed in federal court on Saturday, alleges that “they seized and detained Oregonians without probable cause,” explains Oregon Attorney General Ellen Rosenblum.”
“Police unions in general have become the most vocal interest group opposing criminal justice reforms and especially reforms to police discipline and use of force. Historically, they have, unlike most unions, been profoundly conservative institutions that uphold a particular white ethnic, “law and order”-focused variant of right-wing politics. They have been among Donald Trump’s most fervent allies; Kroll spoke at a Trump rally in 2018, and the International Union of Police Associations has already endorsed Trump for reelection.
The foregrounding of police unions’ role in the warping of American law enforcement has also prompted some difficult conversations on the left. The presence of a segment of a union movement that’s unapologetically right-wing and hostile to Black communities has tested the limits of solidarity from more left-wing unionists.
As long as police forces exist, police unions will exist in some form as well, even if just as political pressure groups. It is therefore natural to think that reforming police unions in some way must be part of the broader agenda of changing policing in America. They are among the biggest stakeholders in the way the system works now; without addressing their power, other reforms may never get off the ground.”
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“Most police union experts I spoke with, though, fell in the middle: They believe that police unions can be usefully reformed without being abolished.
There are a number of possible models for this kind of reform. The organization Campaign Zero, co-founded by activists DeRay Mckesson and Samuel Sinyangwe, has been a leader in pushing for police union contract transparency; much of the research above relies on contracts they’ve surfaced publicly.
They recommend a bevy of contract changes, most of which involve removing provisions included in many union contracts or state laws known as Law Enforcement Officers’ Bills of Rights (LEOBRs), which provide similar protections to police officers as contracts do but are implemented as state legislation instead. Problematic provisions in contracts and LEOBRs include mandates that delay interrogations of officers (as Rushin highlighted), the ability to appeal to an arbitrator partially chosen by the police union, and bans on investigating misconduct that happened more than 100 days in the past.
Rushin has proposed allowing the public to observe collective bargaining between the police and state governments. That way, the public can exert pressure on city leaders not to yield to police union demands about discipline. A 2017 Reuters investigation found that in a number of cities, such as San Antonio, city leaders have given police unions concessions as an explicit trade-off for not offering high pay or limiting pay cuts. “If that trade-off is publicly visible, that our failure to compensate is causing cities to give significant concessions on discipline,” Rushin notes, then public pressure might force the city to increase police salaries rather than reducing accountability.”
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“Suppose that a FedEx deliveryperson pushed you onto the sidewalk, causing a head injury when you fell. The deliveryperson would be liable in a civil suit, and so would FedEx. But it’s different with government. Qualified immunity generally protects police officers and other public employees from lawsuits; meanwhile, a principle called “vicarious liability” protects police departments and city governments from such lawsuits. Fisk argues that Congress should reverse Monell and allow governments to be held liable for police officers’ misconduct.
The most dramatic reform, short of outright abolishing collective bargaining rights for police unions, is one that Harvard’s Sachs suggested sympathy toward and the Boston Globe has editorialized in favor of: limiting police unions to simply bargaining on wages and hours, not on discipline. This change is already the law in Massachusetts. (Fisk argues this would go too far. “There’s two sides to the contract; why are we focused only on what unions are asking for rather than focusing on what cities are asking for?” she says.)
Reforming police unions is hardly the only important task in efforts to reform the police generally. But there is an emerging consensus that something significant has to change in these organizations. If not, they will remain unaccountable lobbies that frustrate even mild efforts to reform police departments and save the lives of unarmed civilians.”