Jurisprudence

How to Change Policing in America

Police in riot gear stand in front of an armored vehicle
Miami police watch protesters during a rally on Sunday. Ricardo Arduengo/Getty Images

George Floyd’s excruciating death at the hands of former Minneapolis Police Department officer Derek Chauvin and the ensuing nationwide protests have focused the country’s attention yet again on the decadeslong issue of police violence against black Americans. Many are saying that we have “been here before.” But we haven’t.

With each new video of these horrifying killings and assaults, we move to a different place—and many black people have simply had it. We are weary of having “the talk” with our children that our parents had with us. And we are appalled by America’s tolerance for black death at the hands of law enforcement. And it’s not just black people. The protests in most cities have been multiracial, with allies from many communities expressing their outrage. An impatience, a righteous anger, and an uncompromising demand for change lie at the core of these protests.

The response to activists’ demands must be swift, decisive, and transformative. After years of focusing on training and supervision, it is time to demand action by the elected officials and policymakers who are responsible for funding police departments, managing police leadership, and making and implementing laws governing police misconduct and accountability.

Here are just a few of the long-overdue measures that federal, state, and local leaders must implement now to set us on the road to effectively  addressing this crisis. These collective steps are critical because they approach eliminating violent, racist policing by addressing root causes while also establishing substantial consequences for misconduct—and building in national accountability measures to ensure that misconduct is not simply replicated from locality to locality.

• Police officers are often described as law enforcement professionals. But professions have standards that govern member conduct, and membership can be revoked for standards violations. Currently, officers fired for misconduct and brutality against innocent civilians can be hired by other departments. We need to establish a national database of officers terminated for misconduct and a decertification system that makes them ineligible to work elsewhere as a police officer.

• Every police killing of an unarmed suspect should be immediately transferred to an independent investigator for review and a special prosecutor for charging. Jurisdictions like New York and Minnesota have policies that allow for special prosecutors in some cases.

• If Floyd had been killed in New York City, we would not have learned about the 18 previous misconduct complaints made against Chauvin, because New York has a highly restrictive law shielding police officers’ misconduct records. Gov. Andrew Cuomo has said that he would sign a bill to repeal the law, commonly referred to as 50-a, which the state Assembly will likely pass this week. Similar laws in other states should also be repealed.

• Police union contracts often contain several provisions that shield officers from accountability for misconduct, such as those protecting officers from questioning for days after an incident—including a killing—and those limiting misconduct-related discipline. Many union contracts also protect officers who witness misconduct by fellow officers from any obligation to report or intervene, perpetuating the “blue wall of silence.” City leaders must expend the political capital necessary to renegotiate provisions that contribute to officer impunity for misconduct.

• It is critical that our city’s mayors be prepared to change their approach to police department funding in a way that prioritizes community funding support and a reimagined conception of public safety. For example, movements to drastically reduce police funding are at the core of a revised vision of public safety that prioritizes social services, youth development, mental health, reentry support, and meaningful provisions for homeless individuals that strengthen community resources to proactively address underlying factors that can contribute to public safety concerns. Most public safety issues and community conflicts do not require the intervention of an armed officer. It’s time to reimagine how we allocate our public safety dollars.

Title VI of the Civil Rights Act of 1964 forbids federal funding of state and local programs that engage in racial discrimination. Yet, despite providing over $2 billion in grant funding to police jurisdictions around the country, the Department of Justice has never fully enforced this provision. Minneapolis has received nearly $7 million in DOJ grants since 2009. There must be an immediate review of all DOJ grant funding to police departments to ensure compliance with Title VI. Federal funds should be withheld from departments that hire officers previously fired for misconduct or those with suspicious levels of in-custody deaths or assaults. The House and Senate Judiciary Committees have oversight power over the DOJ—and must hold it accountable.

• Qualified immunity, a defense that shields officials from the unforeseeable consequences of their reasonable acts, has been interpreted by courts so expansively that it now provides near- impunity for police officers who engage in unconstitutional acts of violence. Civil rights legal groups, libertarian groups, and even some conservative judges oppose qualified immunity in its current form. The U.S. Supreme Court has several cert petitions pending before it right now requesting review of this judge-made doctrine—one that must be urgently fixed by the courts. But Congress can also act to limit this defense.

• The DOJ must immediately open a pattern and practice investigation of the MPD. Since President Donald Trump’s election, the DOJ has ceased using these investigations, which are critical to eliminating systemic discrimination from police departments. Attorney General William Barr has instead egregiously suggested that individuals must comply with and respect law enforcement in order to retain police protection.

We have not been here before. Every police killing of an unarmed black man, woman, or child damages our country and wears away at our society’s fragile fabric. These killings are a tragedy for families and communities. But they are also a stain on our nation’s very soul. This time, it is critical that we place the onus on elected officials and policymakers to upend this system of state-sanctioned killing.