“At every single level, the people who are charged with this really do not have the political will to actually confront and take on some of the actors who are maintaining the status quo.”
This is part one of a series examining some of the biggest obstacles to police reform. Read the second part on how police unions are preventing real reform here.
It’s been 11 days since now former Minneapolis Police Officer Derek Chauvin kneeled on George Floyd’s neck, suffocating him to death. In the aftermath, Americans in more than 300 cities have held protests, demanding justice for Floyd, dramatic reforms to policing in America, and an end to police brutality.
While the scale of the ongoing protests hasn’t been seen since the Civil Rights Movement of the 1960s, the demands are not new. They’re the same demands that were issued after the deaths of Walter Scott in North Charleston, South Carolina in 2015, Mike Brown in Ferguson, Missouri in 2014, Oscar Grant in Oakland, California in 2009, Sean Bell in New York City in 2006, and countless other instances of police killings of unarmed Black men over the years.
Some reforms were implemented during the Obama administration, including the widespread use of body cameras and some limitations on use of force, but more comprehensive legislative reforms have been elusive. The number of police killings have largely remained steady year-over-year since 2015, according to a Washington Post database on police shootings.
There’s no one answer to the question of why police brutality has continued with minimal reforms, but one of the driving forces behind the failure to overhaul policing has been government inaction across every level.
At the federal level, former President Obama enacted reforms in the aftermath of Mike Brown’s death, including putting police departments with patterns of misconduct and a history of violating constitutional rights under court-supervised consent decrees. Under these decrees, the Department of Justice oversaw reforms to law enforcement agencies accused of abuses and civil rights violations. But under President Trump, the DOJ effectively ended the practice of consent decrees, even as experts said these agreements were effective as a deterrent against police misconduct.
Jonathan Smith served as the Chief of the Special Litigation Section of the Civil Rights Division of the DOJ from 2010 to 2015, overseeing the investigations of civil rights violations by police departments, including the investigation into the Ferguson Police Department after Brown’s death. Now the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Smith believes Trump’s election was a driving force in hindering reforms.
“With the election of Donald Trump, there was not only a dramatic retreat from the federal government’s commitment to enforcing civil rights laws as they applied to law enforcement, but you saw an embrace of practices that, in my view, were frequently unconstitutional and also really hostile to the notion that we wanted police departments to reflect community values,” Smith said.
Trump has also repeatedly encouraged police violence during his administration, which experts say has made reform much more difficult.
“The president has directly permitted verbally as well as by policies from the Department of Justice a culture of aggressive action on the part of police, especially with communities of color and Black communities,” said Seft Hunter, director of Black-led organizing and power building at Community Change, a national activist group. “That actually sends a signal—it permits the worst instincts of police officers who are inclined to use disproportionate force in communities of color.”
But the problems do not begin and end with Trump. For decades, there’s been a widespread lack of political will for reform, even among Democrats who, until recent years, joined Republicans in running on “tough-on-crime” platforms.
“There’s been this culture to date wherein politicians actually feel emboldened to talk about just how tough they are on crime,” Hunter said. “We’re still just in the shadows of that kind of public frame where politicians showed up and regularly touted their records of how tough they are on crime.”
Instead of reining in police departments, the federal government in recent years has expanded the use of what’s known as the 1033 program to provide local police departments with billions of dollars of military-grade vehicles and weapons, such as grenade launchers.
This lack of federal accountability has given local police forces the green light to do whatever they want, according to Hunter. “Police departments don’t really see any threats by way of funding or oversight from the federal government because the federal government has chosen not to actually pursue actions against some of these police departments,” he said.
Problems exist at the state and local level too. As of August 2018, 16 states had use-of-force laws on the books, according to the nonpartisan National Conference of State Legislatures. But only some of those laws place direct restrictions on police. In Utah, for example, officers are required to only use force that is considered “reasonable and necessary to execute the warrant” when forcibly entering a property. A 2016 law in Colorado, meanwhile, bans chokeholds, the maneuver used to kill Eric Garner in New York City in 2014.
Most of the laws, however, only required data collection or implemented protocols for investigating allegations of use of force.
In contrast, over a dozen states have enacted a Law Enforcement Officers Bill of Rights (LEOBR), which protects police officers and other law enforcement personnel from investigations and prosecutions. This bill of rights allows officers a “cooling off” period ranging from 24 hours to up to several weeks before they have to answer questions related to shootings they were involved in.
Louisiana’s LEOBR, for example, gives officers up to 30 days to secure an attorney before they are interviewed about alleged misconduct. In Florida, the LEOBR requires investigators to provide an accused officer with all evidence related to the case before beginning an interrogation, including the name of all complainants, physical evidence incident reports, audio evidence, and video recordings.
“These only scratch the surface of the protective procedures offered by LEOBRs to police officers facing internal investigations,” wrote Stephen Rushin, associate professor of law at Loyola University of Chicago, in a 2019 paper published in the Pennsylvania Law Review.
In passing these laws, states have given police officers protections that “no other potential criminal defendant on the planet” gets, Smith said.
Police unions play a powerful role in blocking reforms and lobbying for these bills of rights at the state level, but exert even more of a political stranglehold over local legislation. Many cities have also provided similar protections for police officers, making it far more difficult to hold them accountable. In Minneapolis, for example, citizens have filed more than 2,600 complaints against the police department in the past eight years, but only 12 officers have been disciplined, and the most serious penalty was a 40-hour suspension.
Unions have also flexed their muscle in blocking local efforts to limit the use of force.
As of 2016, only 28 police departments in the nation’s 100 largest cities explicitly banned chokeholds and strangleholds, or limited these tactics to situations where deadly force is authorized, according to the Use of Force Project. Only 67 of the 100 police departments reviewed required officers to give a verbal warning, when possible, before using deadly force, and only 44 of the police departments require officers to de-escalate situations, when possible, before using force.
As of 2016, only 28 police departments in the nation’s 100 largest cities explicitly banned chokeholds and strangleholds, or limited these tactics to situations where deadly force is authorized.
“What we have seen is just the effectiveness by police unions to really squelch any action by city councils and such to actually institute real reform of police,” said Hunter. That makes it nearly possible at the local level to get real reform and oversight of police, because police unions have gotten so powerful.” He added that police unions donate substantial sums of money to local candidates, playing an outsized role in elevating people who support more policing rather than less.
In Santa Ana, California, for example, the police union spent $400,000 on City Council races in 2016—more than half of the entire amount spent on the election. Between their donations and union endorsements—which have been shown to help candidates win—police unions are frequently heavily involved in influencing legislation at the local level.
In many cases, big city mayors, who are almost always Democrats, also feel the need to maintain a good working relationship with police in order to maintain public safety.
New York City is a perfect example. Mayor Bill de Blasio ran on a progressive platform, promising to reform the city’s police department, which had long been accused of overaggressive policing of the city’s Black and Brown communities. While de Blasio has long been reviled by the city’s police unions, he has also disappointed activists with his opposition to stronger regulations on the NYPD, notably his refusal to support criminalizing chokeholds. He also opposed the Manhattan District Attorney’s decision to stop prosecuting most cases of subway fare evasion, and criticized the city’s new bail reform law.
Since the protests over Floyd’s death began, de Blasio has been roundly criticized for his response, which largely saw him blame protesters and defend officers’ actions, even when they were violent without provocation. His response has been so widely panned that more than 230 current and former staffers within his administration took the extraordinary step to write an open letter on Wednesday criticizing his response to the protests and demand reforms, including a $1 billion cut to the NYPD’s budget. The number of signatories has since ballooned to over 400.
“Outraged by the brutality perpetrated by the NYPD during the recent protests against police violence, and by the Mayor’s refusal to criticize the NYPD for that brutality, we are demanding the Mayor implement four policy reforms to live up to the progressive values he always speaks of,” they wrote. “We are demanding radical change from the Mayor, who is on the brink of losing all legitimacy in the eyes of New Yorkers.”
District attorneys also find themselves subject to these complicated dynamics. Most are cautious and have friendly relationships with the police departments, which disincentivizes them from prosecuting killer cops. “Prosecutors are unwilling to bring criminal cases because they rely on the police department every day to prosecute the cases that they bring,” Smith said.
In Los Angeles County, for example, the city’s police union spent $1 million to defend the county’s controversial district attorney, Jackie Lacey, against a challenge by George Gascon, a reform-minded candidate. Since Lacy took office in 2012, more than 600 LA County residents have been killed by law enforcement or died in custody, according to Black Lives Matter Los Angeles. She has charged only one officer. She even declined to file charges in a case where the chief of the LAPD himself called for the prosecution of one of his officers.
Collectively, the decades-long emphasis on “tough on crime” policies, the current occupant of the White House, and the power of unions at the local level make reform extraordinarily difficult, Hunter said. “At every single level, the people who are charged with this really do not have the political will to actually confront and take on some of the actors who are maintaining the status quo.”
So how do things change?
In a Medium post published this week, former President Barack Obama posited one suggestion: Voting in state and local elections.
“The elected officials who matter most in reforming police departments and the criminal justice system work at the state and local levels,” Obama wrote. “It’s mayors and county executives that appoint most police chiefs and negotiate collective bargaining agreements with police unions. It’s district attorneys and state’s attorneys that decide whether or not to investigate and ultimately charge those involved in police misconduct.”
Obama also pointed out that the turnout for these sorts of races was usually “pitifully low,” which he said “makes no sense given the direct impact these offices have on social justice issues, not to mention the fact that who wins and who loses those seats is often determined by just a few thousand, or even a few hundred, votes.”
Writer David Atkins made a similar case for voting and encouraged people to pay attention to down ballot races and vote for candidates who promise to reform police departments.
“The only way to get action on these issues over time is for mayors and DAs to know that the people who are upset about white supremacy in policing will outvote the people who vote along with whoever the police orgs back,” Atkins wrote in a tweet last week. “It’s ultimately about votes.”
Protesting and sustained public pressure have a role too though, Obama made clear. In fact, the events of the past week have already started to show results. Over the past 48 hours, Minneapolis Public School Board and the Minneapolis Park Board—whose members are elected by citizens—severed ties with the city’s police department. In Los Angeles, Mayor Eric Garcetti and city council members said they would look to cut between $100-$150 million from the city’s police department’s budget for the coming fiscal year.
Garcetti also said he would implement certain reforms, such as requiring officers to intervene if they see other officers engage in inappropriate use of force and requiring them to report misconduct.
New efforts are also underway in several states, including Arizona, Wisconsin, and New Jersey, to reform the states’ use of force policies. At the federal level, Democrats in Congress are also preparing to introduce sweeping police reform legislation, while the presumptive Democratic nominee for president, Joe Biden, has made clear he supports the banning of chokeholds, ending the transfer of military weapons to local law enforcement, and better oversight and accountability of police. He also supports creating a national model on use of force.
Whether any of these reforms are actually implemented remains to be seen, but elected officials and candidates are clearly feeling the pressure. Atkins believes that if that pressure carries into Election Day, real change is possible.
“If all the people in the streets and our friends show up on election day with a commitment to vote for DAs and mayors who will break the power of the police, then we will win,” he wrote. “Absent that, we will not. Protests are about winning converts. Elections are about winning power.”