Police and Systemic Racism: Suggestions for Reform

Steps that Congress, the courts, and the (next) president can take.
by Kim Wehle
June 5, 2020
Featured Image
A protester kneels and holds up his hands in front of a row of police during a demonstration against the death of George Floyd at a park near the White House on June 1, 2020 in Washington, DC. - Police fired tear gas outside the White House late Sunday as anti-racism protestors again took to the streets to voice fury at police brutality, and major US cities were put under curfew to suppress rioting.With the Trump administration branding instigators of six nights of rioting as domestic terrorists, there were more confrontations between protestors and police and fresh outbreaks of looting. Local US leaders appealed to citizens to give constructive outlet to their rage over the death of an unarmed black man in Minneapolis, while night-time curfews were imposed in cities including Washington, Los Angeles and Houston. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)

The killing of George Floyd by a Minneapolis police officer—who has been criminally charged and denied bail, along with three police colleagues who stood by and did nothing—and the case of Breonna Taylor, the EMT in Louisville who was killed when police shot 20 rounds into her apartment while executing a search warrant on the wrong residence, leave open many questions, including: What can the federal government do to stop systemic racism in the nation’s police forces?

On the legal matters, here’s a starter list.

1) The Supreme Court could loosen the judge-made protections of “qualified immunity” for law enforcement officers who violate individuals’ constitutional rights.

As a matter of sheer coincidence, the Court is poised this term to decide a handful of cases on the question of whether police officers who violate someone’s constitutional rights can get off the hook for money damages on the theory that the officer didn’t know at the time that the particular conduct in question was unconstitutional.

Keep in mind that the Constitution—including the Fourth Amendment’s ban on unreasonable searches and seizures—is, to use a technical legal term, “squishy.” New factual scenarios arise constantly, and courts are tasked with deciding, in hindsight, whether a government defendant in a lawsuit made a constitutional mistake. Under the qualified immunity doctrine, if an officer successfully shows that a particular maneuver was not banned under “clearly established” law, he cannot be sued.

By way of example, in one of the cases pending before the Court, Baxter v. Bracey, a police officer unleashed a police dog on a suspect while he was sitting with his hands in the air. The dog bit the man’s exposed armpit, sending him to the emergency room. There was already a case on the books holding that it was unconstitutional for the police to release a dog on a suspect who had surrendered by lying down.

The Supreme Court is poised to decide in Baxter whether knowing that it was illegal to use an attack dog to apprehend a suspect in a “lying down” surrender was a sufficient heads-up for police to likewise know not to use an attack dog to apprehend a suspect in a “hands-up” surrender. If the Court decides “no,” then the lawsuit against the officer will be dismissed. The next officer who sends a dog after a suspect with his hands up would be liable in that instance, but not this one. And if a future police officer were to send an attack dog after someone who, say, puts her hands against a wall in surrender, that officer may or may not successfully claim that Baxter was clearly established law forbidding such conduct.

The governing statute for constitutional claims against local police—42 U.S.C. § 1983—contains no immunity provisions. Judges made it up over the years. The rationale is that if police officers had to second-guess every action in urgent scenarios, they would fail to act when they should, and public safety would suffer. As with most constitutional balancing tests, the analysis is highly subjective. The Supreme Court could decide to change it, particularly in the wake of the recent, high-profile police killings of innocent black Americans.

But in a Yale University law journal article from 2017, scholars concluded that qualified immunity has “rarely served its intended role”; it’s unusual for a civil case of police brutality to be thrown out of court on grounds of qualified immunity, leaving officers exposed to the cost, burden, and expense of discovery and litigation anyway. In short, the doctrine appears not to be working to protect police from the distractions of litigation or to motivate them to comply with the Constitution. Either way, the Court probably needs to refashion its rule.

The Supreme Court has also created a relatively complex series of rules for suing municipal police departments (as opposed to individuals) for having discriminatory policies, but absent a “smoking gun” document, plaintiffs have a hard time proving the legal standard: that the police officers in a department were so inadequately trained or supervised that it amounted to deliberate indifference by the city.

2) The Department of Justice under Attorney General Barr could return to the Obama administration’s aggressive use of court-enforced consent agreements to revamp police departments with histories of civil rights violations.

On November 7, 2018, shortly before leaving office, former attorney general Jeff Sessions signed a memorandum officially directing DOJ to pull back on its use of investigations, lawsuits, and consent decrees to address civil rights abuses by state and local police departments. Sessions rationalized that federal supervision “can deprive the elected representatives of the people of the affected jurisdiction of control of their government.” He imposed a series of new requirements before DOJ can take action against systemic bad cop-ism, including that top political brass sign off on any consent deals, and that any agreements must have a termination date.

Barr could—and should—immediately order an investigation into the Minneapolis police department now that things have gotten so brazenly out of hand. But his boss, President Trump, has publicly encouraged police not to be “too nice” with people suspected of criminal wrongdoing, and Barr himself warned in December that “if communities don’t give [police] support and respect, they may find themselves without the police protection they need.”

If America wants police reform, voters need a new DOJ. But that requires a new president.

3) Congress could amend federal law to change the standards for immunizing police officers and police departments from liability, to enhance funding for training and federal supervision, and to mandate greater oversight and enforcement of the federal civil rights laws.

The law that gives people the right to sue state and local officers—known as “Section 1983” for its location in the U.S. Code (linked above)—was originally known as the Ku Klux Klan Act of 1871, passed to help formerly enslaved people enforce new constitutional rights enshrined after the Civil War. Section 1983 was also the legal workhorse of the civil rights era, when in 1961 the Supreme Court issued a decision that substantially expanded its reach. Among the many urgent policies that we need a functioning Congress to address, this is yet another one.

While Congress is at it, it could pass legislation regulating the use of police body cameras and other surveillance methods to monitor and audit the activity of police—not just to use them after the fact to determine which version of a dispute between officer and suspect was accurate.

4) Research should be done on the impact of widespread civilian firearms possession on police officers’ readiness to use guns in routine law enforcement.

Clearly, there is a huge and ugly problem with race in America, and it has infected police forces for far too long. But we also have a gun problem, with an average of 42 people dying every day from gun violence in 2019, a 3 percent increase over the previous year. When Congress passed what’s known as the Dickey Amendment in 1996 banning the use of federal funding to promote gun control, research dollars for public health entities, like the Centers for Disease Control and the National Institutes of Health, to investigate gun violence stopped. After a twenty-year hiatus, Congress finally passed a spending bill in December of last year that allowed the two agencies to share $25 million for gun-violence research. That number should be much higher, and it should go to studying racial prejudice in law enforcement, as well as the psychological impact of policing amidst an estimated 270 million privately owned guns in the United States as of 2012—a figure that represents a whopping 40 percent of the entire firearms inventory worldwide.

As James Madison famously said in Federalist No. 51, “If men were angels, no government would be necessary.” It’s up to the citizenry to force government to do the right thing when it comes to racist policing—and the only reliable way to do so is at the ballot box.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.