George Floyd. Breonna Taylor. Jacob Blake.
Their encounters with police in 2020—which left two of them dead and one seriously injured—inspired a historic surge in legislative attention to law enforcement policy, speakers told those attending the “Evolution of Policing” session at NCSL’s 2021 Legislative Summit.
“Policing is a high-risk profession that is not regulated like one,” said Walter Katz, vice president of criminal justice for Arnold Ventures, a philanthropy dedicated to tackling some of the nation’s most pressing problems. “The shock of (George Floyd’s murder) and the nationwide focus on law enforcement policy that followed kicked off an unprecedented state legislative response. Over the past year, more than 3,000 bills were considered.”
Policing is a high-risk profession that is not regulated like one. —Walter Katz, Arnold Ventures
He said most policing policy is guided by law enforcement agencies themselves or private, for-profit vendors. “That leaves a patchwork of policies, directives, standard operating procedures and general order with little transparency into whether they are in line with best practices.”
But state lawmakers are stepping up to change that.
“In Kentucky, we didn’t have a really strong involvement in policing policy prior to 2021,” Senator Whitney Westerfield (R) said. “The tragic and avoidable death of Breonna Taylor pushed an enormous effort to change the way we addressed policing in Kentucky.”
Taylor, 26, was shot to death when police used a no-knock warrant to enter her home while she was sleeping; she was not the target of the raid. A new law prohibits no-knock warrants that authorize entry without notice except in limited circumstances. Such warrants must be executed by specially trained response teams equipped with body-worn cameras and clear identification, and an EMT must be on site to provide medical assistance. Entry without notice can only occur between the hours of 6 a.m. and 10 p.m. unless a court determines otherwise.
Accountability a Priority
Washington state Representative Roger Goodman (D), chair of the House Public Safety Committee, said they have been looking at the use of deadly force since the 2014 death of Michael Brown in Ferguson, Mo. “The statute for criminal liability of use of deadly force required in a prosecution to show the officer had ‘active malice’ against the person—which was basically impossible to prove,” he said. “Since then, there’s been an evolution of thinking: Police misconduct really does need to be held accountable.”
In the last session, Washington state passed laws to prohibit all chokeholds and neck restraints and no-knock warrants; severely limit the use of tear gas and vehicle pursuits; restrict shooting at moving vehicles unless the vehicle is being used as a weapon against police; and ban a wide range of military equipment and vehicles.
The Legislature also established a “reasonable care” standard that stresses de-escalation and the use of force as a last resort. It also spells out de-escalation tactics and when force may be used. Other bills require that all interrogations be recorded, even if they happen on the road, and that juveniles be required to consult with an attorney for at least an hour before police can interrogate them. A new statewide office of independent investigations will examine use of deadly force cases, deaths in custody and sexual assault allegations against police. New databases track incidents and help police adjust their practices accordingly, Goodman said.
“We are going to be holding police accountable, but at the same time, upholding the profession,” he said. “This isn’t a one-sided effort.”
Wisconsin Representative John Spiros (R), a former police officer who chairs the Assembly Criminal Justice Committee, said the 2020 police shooting that paralyzed Jacob Blake, a Black man, in Kenosha, Wis., inspired the formation of a bipartisan task force to study the issue and recommend changes. Wisconsin now bans the use of chokeholds, with some exceptions; requires the state Justice Department to publish annual data on police use of force; requires police departments to publish use-of-force policies online; and funds community-oriented policing through a $600,000 grant program.
Following the Evidence
“Unchecked police misconduct undermines trust in legitimacy of policing and thus its ability to prevent and investigate crime,” Katz said, adding that prior to Floyd’s death, discipline following public complaints about police was a rarity in Minneapolis. According to city data, only 85 of the more than 2,600 complaints of alleged police misconduct over a seven-year period resulted in disciplinary action.
But that’s changing, Katz said.
“We are witnessing a greater willingness to follow the evidence, a recognition that truth and legitimacy do matter, and an embrace of the idea that community should have a role,” he said. “Our approach is not to pit public safety against reform. Voters want evidence-based solutions to public safety concerns, and they want a more equitable and accountable criminal justice system.”
Lisa Ryckman is an associate director in NCSL’s Communications Division.