Police reform: Part 1

July 10th, 2020

Hearing calls for police reform 

For weeks, protesters across the United States have been calling for changes in how police officers operate. The shooting of Breonna Taylor in her own apartment by police and the murder of George Floyd by a police officer catalyzed the current protests, but are only two recent incidents in a long, well-documented, bloody history of police violence against Black people and other nonwhite people. 

According to a recent national poll, most Americans now say they support policies to reduce police violence and change how the criminal justice system treats officers who kill or injure civilians. However, the question of which changes to implement continues to spark disagreement. 

Several reform measures that can be implemented immediately have gained attention in recent weeks. This article will discuss these proposals and their potential to effect change. Next week, I’ll explore larger, long-term ideas and how they could transform policing as Americans currently know it.

Banning no-knock warrants and raids 

The plain-clothes officers who burst into Breonna Taylor’s apartment on the night she died were executing a no-knock search warrant. Unlike a typical search warrant, a no-knock warrant does not require officers to announce their presence or purpose before entering. While they are meant to be used rarely, police carry out tens of thousands a year. According to Thomas Harvey of racial justice nonprofit The Advancement Project, officers perform some 20,000 no-knock raids annually, “overwhelmingly against black and brown people.” Peter Kraska, an Eastern Kentucky University professor who studies these raids, cites much higher numbers — between 60,000 and 70,000. 

No-knock warrants rapidly expanded during the late 20th century “war on drugs.” They were intended as a tool to preserve the element of surprise against drug dealers. Yet in 36% of no-knock raids studied by the American Civil Liberties Union “no contraband of any sort was found.” No drugs were found in Breonna Taylor’s apartment either. 

Alarming and dangerous by their very nature, no-knock raids between 2010 and 2016 resulted in the deaths of at least 81 civilians and 13 law enforcement officers. “The war on drugs has always been predominantly prosecuted against minority communities,” Kraska told Mother Jones, “so the bulk of no-knock raids are executed against those same people.” 

In the weeks since Taylor’s death, the Louisville Metro Council has voted unanimously to end the practice. Senator Rand Paul has introduced legislation to end no-knock warrants nationwide. “After talking with Breonna Taylor’s family,” he said in a statement, “I’ve come to the conclusion that it’s long past time to get rid of no-knock warrants.” 

Banning chokeholds 

Almost everyone has seen the video of Derek Chauvin kneeling on the neck of George Floyd for 8 minutes and 46 seconds and ignoring Floyd’s repeated plea, “I can’t breathe.” Many of us also recall that in 2014 Eric Garner said the same thing while he lay pinned, facedown on the sidewalk, his neck in a chokehold. Over the last decade, at least 134 people have died in police custody from “asphyxia/restraint.” Thirty-two of the victims told police, to no avail, “I can’t breathe.” 

Many large police departments have banned chokeholds for years, and in some cases decades, but these bans have proven “largely ineffective and subject to lax enforcement,” according to National Public Radio, in part because “when chokeholds specifically were banned, a variation on the neck restraint was often permitted instead.” Experts agree Chauvin did not follow Minneapolis police policy. The department teaches a “knee into shoulder blades” restraint, reserving neck restraint only for actively aggressive or resistant people, and only long enough to stop the threat. 

Minneapolis has now banned chokeholds and strangleholds. In his recent Executive Order on safe policing, President Trump financially incentivized the prohibition of chokeholds “unless an officer’s life is at risk.” 

Michael Schlosser, director of the University of Illinois Police Training Institute, notes “too many people, especially civilians, lump [all neck restraints] into one category: the chokehold.” He distinguishes between the “blood choke” (or stranglehold) which restricts blood flow to the brain and is “relatively safe,” and the “air choke,” which restricts the airway and is “considerably more dangerous.” He stresses officers “should follow their state laws and their departmental policies and procedures  . . .  and train as much as possible.” 

But any chokehold — no matter how well-trained, how properly applied, or how legal — fundamentally reinforces, on a physical and symbolic level, what Georgetown law professor Paul Butler calls African Americans’ perpetual second-class citizenship. “A chokehold is a process of coercing submission that is self-reinforcing,” Butler writes in his book, Chokehold.

Ending qualified immunity 

“Trying this case will not be an easy thing,” Minnesota Attorney General Keith Ellison said regarding the prosecution of the officers involved in killing George Floyd. “We’re confident in what we’re doing, but history does show there are clear challenges here.” 

Police officers in the United States rarely face legal consequences for using lethal force. From 2013 to 2019, 99% of killings by police resulted in no criminal charges. When “an officer gets on the stand and says ‘I feared for my life,’” criminal justice professor Philip Stinson told NBC News, “that’s usually all she wrote. No conviction, more often than that, no charges at all.” 

In addition, the legal doctrine of qualified immunity protects government officials, including law enforcement officers, from lawsuits alleging violations of a plaintiff’s rights. Set forth in the 1967 Supreme Court case Pierson v. Ray, the doctrine was meant to give public officials acting in good faith enough latitude to perform their duties without fear of civil accountability. 

In recent decades the Court’s interpretation of this doctrine has shifted. Plaintiffs must now prove officials violated their “clearly established” rights by citing a previously decided case involving the same “specific context” and “particular conduct.” In practice, qualified immunity gives officials “a get-out-of-jail-free card simply because they violated your rights . . . in a way that no one has ever thought of before,” attorney Robert McNamara told MarketWatch. The Supreme Court declined to review several cases related to qualified immunity this term. Only Justice Clarence Thomas dissented, citing his “strong doubts” about the doctrine. 

Colorado recently became the first state to eliminate qualified immunity, but Rashad Robinson, president of civil rights organization Color of Change, doesn’t sound hopeful about broader change. He told NBC News the country shouldn’t be “expecting the system that puts black people in harm’s way to then turn around and be an effective vehicle for justice when black people are harmed.” 


The “8 Can’t Wait” campaign 

The “8 Can’t Wait” campaign proposes eight immediate changes that it argues research has shown could reduce police killings by 72%. These proposals cover everything from banning chokeholds to requiring de-escalation efforts and using a clearly defined “use of force continuum.” The full list can be found at their website

Other activists have criticized this campaign, arguing that its claims are based on faulty data and that they are advocating “reforms that have already been tried and failed.” On Twitter, Dwayne David Paul, director of the Collaborative Center for Justice, said “8 Can’t Wait” “totally obscures the demands of longtime organizers to strip resources from police” and is “the easy way out for politicians.” 

Writing for the Harvard Civil Rights-Civil Liberties Law Review, Olivia Murray points out “the largest police departments in the country already have half or more of these policies in place.” The campaign, she writes, like “all police reform efforts,” cannot control for “one irreparable flaw: average people having the extraordinary responsibility of policing other, average people.” 

In response, “8 Can’t Wait” organizers, posted a statement on their website that reads, “While we stand by the idea that any political leaders truly invested in protecting black lives should adopt the #8CANTWAIT policies, we also believe the end goal for all of us should be absolute liberation from policing.”

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