As a health crisis forces us to rethink the ways we work, socialize and travel, a policing crisis is driving a reevaluation of law enforcement in our communities.
The deaths this year of George Floyd, Breonna Taylor and Daniel Prude, among others, during confrontations with law enforcement, have sparked demonstrations and national conversations about policy, along with calls to create better police accountability.
The conversations are “long overdue,” Barry Friedman, faculty director of the Policing Project at New York University School of Law, told a session at NCSL Base Camp 2020. Friedman, author of the 2017 book “Unwarranted: Policing Without Permission,” was joined by Representatives Leslie Herod (D) of Colorado and Matt Windschitl (R) of Iowa in a discussion moderated by NCSL’s Amber Widgery.
In our conversations on police reforms, we need to look closely at where accountability occurs, Friedman said.
“When we talk about accountability in policing, what we often mean is that something has gone wrong and we want to hold somebody responsible,” he said. “That’s where we get criminal prosecutions of officers, issues about qualified immunity and civil rights lawsuits, federal investigations, civilian review boards, body cameras—all of it, we add one layer after another to try to hold people responsible after things have gone wrong.”
We need to move the focus of our policing rules to the front end of the process, he said, as we do in other areas of government.
“When we make rules up front, when you pass legislation, there are three things that matter: You get public input, you do it transparently and you do something like cost-benefit analysis. … Everywhere else in government except in policing, that’s what we do. We pass rules up front to govern, and that’s not at all what we do with policing. We’re always trying to fix things on the back end.”
If state action since May 25, the day Floyd was killed by police in Minneapolis, is an indication, many lawmakers are ready to take Friedman’s advice: 34 state legislatures have taken up the issue of policing policy, resulting in nearly 600 new bills, 50 of which have been enacted, many with overwhelming bipartisan support.
Colorado and Iowa were among the first states to enact new policing legislation. Working across the aisle, legislators in both states had bills on their governors’ desks with unanimous or near-unanimous support within days or weeks of their introduction.
“Colorado is the first state to end qualified immunity in legislation,” said Herod, a prime sponsor of the bill, citing one of the new law’s attempts to provide police officers and agencies with up-front guidance. Among other changes:
- Officers may not use deadly physical force to apprehend a person suspected of a minor or nonviolent offense.
- Law enforcement agencies must collect and report to the state racial data on officers’ encounters with the public; where interactions take place and the circumstances; instances in which officers unholster their weapons or point them at a citizen, whether or not they are fired; and use-of-force information, including the type of force used and any injuries experienced by the suspect or officer.
- Officers must intervene if a fellow officer is using inappropriate force against a member of the public.
- Starting July 1, 2023, officers must activate cameras, worn on the body or mounted in patrol cars, “during any interaction with the public.”
- Officers may be sued in their individual capacities and be liable for up to $25,000 in damages.
- Officers may not use chokeholds or carotid holds.
Iowa’s law covers similar ground, according to Windschitl, who said its swift passage had much to do with the majority’s early collaboration with Representative Ako Abdul-Samad and other members of the Democratic Black Caucus. The caucus began to draft language for a potential bill after meeting with Des Moines Black Lives Matter leaders.
Iowa’s law emphasizes new racial bias and de-escalation training requirements for officers.
“Is this a solution to every problem that we have? To every injustice? No,” Windschitl said after the bill passed. “But it’s a damn good start, and we can move forward from here.”
The Colorado and Iowa laws align with several of the principles advocated by Friedman’s Policing Project. He told the audience the three changes he recommends state lawmakers work on immediately are restricting officers’ use of force; establishing municipal liability for police behavior; and collecting data, without which, he said, it’s impossible to know which reforms work and which don’t.
Kevin Frazzini is an editor in NCSL’s Communications Division.
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