New Police Reform Laws in California Aim to Hold Officers Accountable, but is This Enough?
Earlier this month, California Gov. Gavin Newsom signed Bill SB 2 that will eliminate several legal immunities that shield law enforcement from civil rights lawsuits. This move is easy to overlook as legislative minutia, but it has the potential to make a huge impact on how police officers are held accountable for excessive force and other misconduct.
Currently, victims of police misconduct are hamstrung by qualified immunity, which prevents government agents, including police officers, from being sued for violating someone’s constitutional rights, unless they violated “clearly established” constitutional rights. While the legal doctrine is aimed at protecting government officials and law enforcement who are performing their duties reasonably from frivolous civil lawsuits, in practice, the legal doctrine makes it harder to hold police accountable for their actions.
July 4, 2020 - Thousands of protestors march with the Coalition to Honor Black and Indigenous Activists at Fort Greene Park in Brooklyn, NY
Photo Credit: Erik McGregor
For example, Fresno police officers accused of stealing more than $225,000 while executing searches of people’s homes were granted qualified immunity by the Ninth Circuit Court of Appeals in San Francisco because there is s no clear law holding that police violate the 4th Amendment protection against illegal search and seizure or the 14th Amendment right to due process when they steal property while serving a search warrant. Not surprisingly, the Council on Criminal Justice published a report on qualified immunity, in which they concluded that the legal precedent has made it difficult to hold law enforcement agencies and officers accountable for the harm caused by excessive force and other forms of misconduct.
While the SB 2 bill seeks to address some gaps in the law that basically provided absolute immunity for police officers investigating a crime and attempts to change California laws that shield prison guards from being held liable for injuring prisoners, this increasingly complex legislation and series of seemingly endless provisions can leave an officer’s head spinning about what conduct is and is not immune to prosecution. While SB2 is a step in the right direction, it misses the broader point, which is that officers operating at the edge of the law should not be kept in check by legal precedent alone. Rather, we need to make the gap between officers acting in “good faith” and those with a “specific intent” to interfere with someone’s constitutional rights in a manner that is “deliberate or spiteful.”
The solution to this problem is for police departments and federal agencies to have stricter lethal force policies that compel officers to exhaust the full range of options prior to using lethal force, even if it is justified in hindsight. For example, in May, the Sacramento City Council adopted new policy language requiring police officers to only use deadly force “as a last resort.” While a step in the right direction, the new policy falls short of what was asked of the council by Sacramento Community Police Review Commission, which requested language stating that deadly force is permissible “only as a last resort and when reasonable alternatives have been exhausted or are not feasible.” This language would set an expectation that police should be expected to use an entire array of tools and techniques prior to ever drawing a weapon.
To be effective in application, any policy changes must be accompanied by cultural changes that de-emphasize the “warrior cop” mentality that focuses on physical toughness and dominance and instead evaluates officers on their ability to avoid violence, keep the peace, and maintain order. Likewise, any use of force should be justified, not just by a lethal force policy, but based on whether or not that amount of force was necessary based on the circumstances at that time.
Lastly, for real change to occur, we must begin training police officers differently by complementing existing tactical training with training in “soft skills'' that can prevent a tense situation from becoming a violent encounter, thus preventing the need for physical force in the first place. To create lasting change, we need to provide officers the tools they need to conduct the full breadth of their duties, which the vast majority of the time should be peacefully interacting with the public. No officer starts a shift hoping to end of life, and no officer wants to have to use the indemnity clause in a court of law to defend his or her actions. Rather, it’s time that we started arming officers with a more diverse toolset.
Proper training, coupled with a think-first, shoot-second mindset and a lethal force policy that compels officers to exhaust a full range of options before using a weapon, will prevent “well-intentioned” officers from ever needing to use the qualified immunity defense. Likewise, it will make it harder for bad cops, violent cops, and racist cops, to use the defense that they were only acting as they were trained and within department policy. Sure there may be a few bad apples, but with over 1000 fatal police shootings each year, that can’t be the entire story.
Not only do we owe it to these officers to train them to do their jobs safely, but we also owe it to police leaders, judges, juries, and the community, to more effectively rout out these “bad apples” so that they can be prosecuted to the full extent of the law, as they should be. Doing so will not only remove qualified immunity as a pass for bad behavior, it will protect the sanctity of the qualified immunity defense to do as it was designed, to protect those who seek to protect us.
