IS THE “CURE” WORSE THAN THE “DISEASE”?
Dem’s push the “George Floyd Justice in Policing Act.”
Its consequences could be profound.
For Police Issues by Julius (Jay) Wachtel. On June 8, 2020, a mere twelve days after those punishing “nine minutes and twenty-nine seconds” took George Floyd’s life, the 116th. Congress introduced the “George Floyd Justice in Policing Act of 2020.” Seventeen days later, on June 25, the House approved the measure by a comfortable 236-181 margin. Only three Republicans, though, voted in its favor. And the Senate, then a province of the “Reds,” simply refused to take it up.
Hoping for a better outcome, the Dem’s reintroduced the legislation in the 117th. Congress. On March 3rd., reflecting their eroded standing, the “George Floyd Justice in Policing Act of 2021” passed the lower chamber on a far less decisive 220-212 vote. It now awaits action by the evenly-divided Senate. Here are some of its key provisions (for the text version click here; for a summary click here.)
Click here for the complete collection of compliance and force essays
- As Federal law (18 USC 242) presently stands, police officers can only be prosecuted for “willful” civil rights violations, meaning done on purpose and with bad intent. The George Floyd Act would relax this standard to include behavior that was “knowing” – meaning, not by accident – or “reckless.” Should death result, present penalty enhancements would be extended to include situations where officer conduct was a “substantial” contributing factor to the fatality, not only its sole or primary cause.
- In Harlow v. Fitzgerald (457 U.S. 800, 1982) the Supreme Court ruled that “qualified immunity” protects government employees from lawsuits for deprivation of civil rights under 42 USC 1983 “insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” Under the Floyd Act, that “immunity” would become a historical footnote. Civil rights lawsuits against individual officers would be heard (and could ultimately succeed) no matter whether an officer “was acting in good faith” or believed that their conduct was “lawful.”
- An extensive, highly detailed section of the Act regulates how Federal law enforcement officers (but read on) go about their business. No-knock warrants are prohibited. Officers must intervene when colleagues misbehave. Most importantly, the use of force, including deadly force, would be bound by standards that are far less forgiving than the present go-to, the Supreme Court ruling in Graham v. Connor. Here’s a extract from that landmark decision:
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
No more. If at all possible, de-escalation must be attempted. Force also appears restricted to making arrests, and then only when “the officer has probable cause to believe” (correctly so) that the person being taken into custody committed a crime. Moreover, the force used must be “necessary and proportional,” and lethal force is only allowed “as a last resort” once “reasonable alternatives...have been exhausted” and there is “no substantial risk of injury to a third person.” Chokeholds and carotid holds are banned outright.
- To keep getting Federal law enforcement funds, state and local governments would have to follow the same use-of-force standards as the Feds. They must also contribute to a “National Police Misconduct Registry” that will include information about every citizen complaint filed against a state or local law enforcement officer. Instances that allegedly involve racial profiling or excessive force would be indexed by officer name and appear on a public website. To keep those Federal bucks rolling in, agencies would also have to participate in a national effort to combat racial profiling and assure a “more respectful interaction with the public.” They would be required to consistently detect “episodes of discriminatory policing” and sanction officers who engage in such practices.
- The Act goes beyond George Floyd. To quell concerns that surplus military gear “could be used inappropriately during policing efforts in which people and taxpayers could be harmed,” the measure prohibits its transfer to local law enforcement agencies except for counterterrorism purposes (no more using it for drugs or border security.) The Act bars the transfer of firearms, impact weapons, drones, and vehicles other than automobiles and utility trucks. There’s a provision for exceptions, but its complexities seem befuddling.
After reintroducing the measure in the new Congress, its main House sponsor, Rep. Karen Bass (D-Calif., pictured above) evocatively summarized its purpose:
Never again should an unarmed individual be murdered or brutalized by someone who is supposed to serve and protect them. Never again should a family have to watch the murder of their loved one over and over again on the TV. Never again should the world be subject to witnessing what we saw happen to George Floyd in the streets in Minnesota.
Representative Bass’ partner in the effort, House Judiciary Committee Chairman Jerrold Nadler, also expressed intense views. But he did offer an olive branch to the authorities:
We have not forgotten the terrifying words ‘I can’t breathe’ spoken by George Floyd, Eric Garner, and the millions of Americans in the streets who have called out for change in the wake of the murders of George Floyd, Breonna Taylor and so many others...With this legislation, the federal government demonstrates its commitment to fully reexamining law enforcement practices and building better relationships between law enforcement and the communities they are sworn to protect and serve.
Were it that simple. A continued profusion of lethal encounters (i.e., Breonna Taylor, Ma’Khia Bryant, Adam Toledo, Daunte Wright) has led some “Blues” to criticize the Floyd Act as much too little, far too late. Sponsored by Representative Ayanna Presley (D-Mass.) and Rashida Tlaib (D-Mich.), the “BREATHE” Act would, among other things, “divest federal resources from incarceration and policing” and “invest in new, non-punitive, non-carceral approaches to community safety that lead states to shrink their criminal-legal systems....”
As one might expect, such views have horrified the “Reds.” But there are exceptions. Say, Senator Tim Scott (R-S.C.) One of the few Republicans to openly endorse some aspects of the Floyd Act, he seeks “a substantive piece of legislation that is transformative for policing.” But his views on what the final product should look like aren’t what the measure’s sponsors have in mind. For one thing, he’d like a re-do of the qualified immunity provision so that the burdens of litigation and unfavorable outcomes fall on agencies instead of individual cops. He also strongly opposes the notion of making it easier to prosecute officers for Federal civil rights violations:
If you demonize and/or eliminate protections that they (police) have, chances are very low that you're going to have officers responding, so community safety goes down. Case in point: Portland, Cleveland, New York, Atlanta, Chicago. So we have to do something that strikes the right balance.
Were it that simple. While some tweaks might help get a few of Representative Scott’s colleagues to vote “yea,” influential civil rights groups that back the Floyd Act have steadfastly refused to water it down. Sherrilyn Ifill, President of the NAACP Legal Defense and Educational Fund, demands that the law pass exactly as written:
The George Floyd Justice in Policing Act is a vital public safety measure. The core of the bill are measures that clear away barriers to holding law enforcement officers accountable for brutality and misconduct...We call on the Senate to do its part and immediately take up and pass the George Floyd Justice in Policing Act.
That’s definitely a non-starter for the more stalwart Reds, say, the Heritage Foundation’s Zack Smith. In his view, prohibiting the transfer of military gear and eliminating no-knock warrants would make policing far more dangerous, while tightening the rules on the use of deadly force “could cause officers to hesitate in critical situations.”
Naturally, police union leaders are deeply invested in what the Act might bring. Patrick Yoes, the FOP’s National President, feels that some of its measures “could have a positive impact.” Yet he (and, assumedly, most of his membership) strongly opposes other aspects, such as abolishing qualified immunity. Mr. Yoes has also complained that despite the need for “genuine dialogue and engagement” the Act was sent “directly to the floor – without Committee consideration or any real debate on meaningful amendments.”
That lack of consultation has troubled other influential law enforcement leaders. Cynthia Renaud, the retired police chief who leads the International Association of Chiefs of Police, issued a detailed, highly critical “letter” that strongly objects to the Act’s key provisions. She warns, first, that ending qualified immunity “would have a profoundly chilling effect on police officers and would limit their ability and willingness to respond to both critical incidents and routine calls for service without hesitation.” Ms. Renaud also cautions that the Act’s use-of-force rules, which go well beyond Graham, assume “a level of officer influence over circumstances that does not exist and strives to create a level of perfection that cannot possibly be obtained.” In effect, cops would be encouraged to do nothing. Her objections extend to the National Police Misconduct Registry and to the prohibition on the transfer of military equipment, which she deems crucial for officer safety. Really, considering the penetrating power of firearms in the hands of the general public, the availability of armored vehicles does seem a no-brainer.
So what do we think? (Glad you asked!) We’ve taken a deep look at the proposal and are greatly concerned about its reach. In its enthusiasm to reflect today’s sociopolitical climate, the Act seems to overlook the actual workplace of policing. As this retired law enforcement professional well remembers, it’s an inherently messy space. When Louisville cops executed their infamous search warrant at the residence of Breonna Taylor, they didn’t anticipate that a companion would be there, nor that he would be armed, nor that he would interpret their presence as a criminal assault and open fire. And when an officer fired back after a bullet struck his partner, his round missed its mark and tragically killed Ms. Taylor, who was standing alongside.
That episode likely spurred the Act’s prohibition of lethal force unless there is “no substantial risk of injury to a third person.” Yet officers often arrive at chaotic scenes knowing preciously little about the circumstances and nothing about its participants. Consider the recent tragic example of Ma’Khia Bryant. Within seconds of a cop’s arrival at the disorderly scene, one angry teen tried to plunge a knife into the torso of another. In this example, the officer’s shots struck their intended target. Had he not fired, as others were nearby, Ms. Bryant would have survived. But her intended victim could have been fatally stabbed.
It’s for the reason that officers must occasionally make “split-second” decisions that the Supreme Court ruled as it did in Graham. As we mentioned in “Routinely Chaotic”, lethal encounters typically occur in confused situations that teem with conflict and uncertainty. Throw in a lack of information, a shortage of human and material resources, and the inevitable “idiosyncrasies” of both cops and noncompliant citizens, and you have “A Recipe for Disaster.”
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What gets little play are the many successes (including more than a few miracles) that good cops pull off as a matter of course. As we recommended in our recent Police Chief piece, studying these could prove instructive. Yet the jargon-rich Act doesn’t propose to craft organic solutions, and certainly not with any input from working cops. Instead, the Act’s approach seems wholly regulatory, as though the infinitely complex legislation can accomplish anything beyond guaranteeing long-term employment to legions of Federal and State overseers.
But reality has intervened. Major cities are experiencing a surge in violence and armed mayhem (click here for Chicago, here for Los Angeles, and here for New York City.) So it seems unlikely that the Act will pass in its current form. Hopefully, though, its sponsors will get the message and craft an approach that’s attuned to the messy social environment that officers face each day. Cops and citizens deserve no less.
11/1/22 The Associated Press released an in-depth survey of post-Floyd policing reforms - and of resistance to reforms - in four States: Washington, Mississippi, Nevada and Virginia. Outcomes seem consistent with each State’s “progressive” bent. But even in liberal Washington, pushback forced some readjustment. Use of force had been banned except when there was probable cause to arrest. But the law was changed to once again allow officers to use of force to prevent flight from investigative stops.
10/24/22 Public reaction to the George Floyd episode led to a “mass exodus” of officers, stripping Minneapolis P.D. of one-third of its cops. Along with that came the pandemic and a surge in murders, aggravated assaults and carjackings. Citizens recently successfully sued the city for not meeting the minimum police staffing requirements imposed by the City charter. But recruitment has posed a severe challenge; there have been only 57 applicants this year compared with 292 in 2019.
10/12/22 On October 11, the Supreme Court summarily refused, without comment, to revisit the doctrine of qualified immunity, which shields police officers from lawsuits unless a persons’s “clearly established” rights had been violated. (Gordon, Nita v. Bierenga, Keith, no. 21-1540.) Reuters article
9/26/22 As midterms approach and political campaigns ramp up, crime is taking center stage. Concerns that the “defund” movement and less aggressive law enforcement have contributed to the spike in crime and violence have placed the “Blues” in an awkward position. So even progressive candidates like Wisconsin U.S. Senate candidate Mandela Barnes are finding it necessary to reassure voters that, indeed, they really do support the police.
7/20/22 In Boston, complaints that police used excessive force against participants in the 2020 George Floyd protests led the City Council to pass a law that strictly regulates when “tear gas, pepper spray, rubber bullets and beanbag rounds” can be used. According to the police union, which is suing to overturn the law, its limits and complexities amount to a “no use” policy and place both citizens and cops at risk.
7/12/22 Montgomery County, Maryland’s most populous, adjoins Washington, D.C. During the past year nonfatal shootings increased 75 percent. Police chief Marcus Jones attributes it to the disruptions brought on by COVID and the availability of “ghost guns.” Seizing them, says a retired assistant chief, requires that offices “reengage” in doing traffic stops. In the past the practice was admittedly taken too far, but he’d welcome stops for legitimate reasons such as “running a red light, talking on a cellphone.”
6/20/22 Washington, D.C.’s 2021 murder count, 227, was the highest since 2003. With a city beset by violence - in January, a candidate for the City Council “was carjacked at gunpoint” - Mayor Muriel Bowser’s reelection campaign is focused on adding more cops. But Council members who intend to challenge her pooh-pooh it. “During the height of the crack epidemic, D.C. had 5,000-plus police officers, and it never decreased any crime” said one.
6/8/22 Maryland’s Police Accountability Act (click here), which incorporates citizen panels into the police disciplinary process, will take effect in July. But Prince George’s County is still quarreling over the details. Although eleven citizens have been vetted to serve on its Police Accountability Board, residents complain they were excluded from the selection process. And the power the nominees would actually yield is considered insufficient.
Elected in 2019 on a campaign to reform policing, stop the war on drugs and limit incarceration, Chesa Boudin, San Francisco’s progressive D.A., has been recalled. Amidst a seemingly endless wave of crime and disorder, sixty percent of those casting ballots favored removing the former public defender from office. Three liberal members of the school board had been recalled months earlier.
5/25/22 President Biden signed an executive order that implements key ingredients of the George Floyd Act into Federal law enforcement operations. Federal agencies will be required to maintain a national database of misconduct. Their officers must use body-worn cameras and are forbidden from applying “chokeholds” and carotid restraints except when lethal force is authorized. No-knock Federal entries are restricted to situations where a violent response is feared. Federal officers must limit the use of force (see updated DOJ policy) and promptly intervene should colleagues misbehave.
5/7/22 John Creuzot, Dallas County’s progressively-minded D.A., came to office promising to reform the system. Reaching back to the George Floyd protests that rocked Dallas during the summer of 2020, he has obtained indictments charging two Dallas and one Garland officer with felonies for using impact projectiles that seriously injured several unarmed protesters who allegedly posed no threat. Dallas’ police chief bemoaned the effects of the indictment on his force, while Garland’s openly disputed the charges.
4/7/22 On Feb. 2 Minneapolis SWAT officer Mark Hanneman entered a residence while executing a no-knock search warrant on a St. Paul murder case. Amir Locke, a 22-year old Black youth who had been sleeping on the couch, suddenly woke up. Locke allegedly pointed a gun he had in the officer’s direction, and the officer shot him dead. Locke was not a suspect in the murder. On April 6 local and State prosecutors announced that viewed “from the perspective of a reasonable police officer,” there was insufficient evidence to charge the officer with a crime.
3/29/22 DOJ’s 2023 fiscal year budget calls for billions in new spending to enhance Federal and local law enforcement efforts. But civil rights aren’t being ignored. It’s requesting more than $200 million to combat hate crimes, and another $25 million to provide “mediation and conciliation services to communities impacted by conflict.” And to help insure that Federal agents comply with the rules, over $100 million has been set aside to insure that each has a body camera, just like a local cop.
3/11/22 Congressional police reform measures seem dead in the water. With only lukewarm support from the “Blues” and staunch opposition from the “Reds,” standalone bills (such as the Floyd Act) failed to garner sufficient support. And provisions that would have required State and local agencies to adopt certain rules (i.e., no more chokeholds or drug-related “no-knock” warrants) or forego Federal funding didn’t make it into the omnibus spending bill that the House just passed. But there’s always next year!
3/7/22 On March 1st. Rep. Ilhan Omar (D-MN) introduced the “Amir Locke End Deadly No-Knock Warrants Act.” It would ban Federal no-knock warrants in drug cases. They could otherwise be issued only when their need is supported by “clear and convincing evidence” that giving notice “would substantially endanger the life or safety of the law enforcement officer or other persons.” Federal law enforcement funds could only go to State and local law enforcement agencies with equivalent policies (see 4/7/22 update.)
2/7/22 Disenchantment with Chesa Boudin, San Francisco’s progressive D.A. picked up steam. After one of the D.A.’s investigators publicly complained that she felt pressured to ignore evidence favorable to an accused cop, police chief William Scott announced he will cease coordinating inquiries into police shootings and uses of force with Boudin’s office. And an elderly Vietnamese-American resident who was violently attacked sued the D.A. in Federal Court for reducing his assailant’s charges to a misdemeanor and no jail time.
2/5/22 Spurred by “harsh criticism” from the mayor and police commissioner and a wave of violence that’s taken the lives of two NYPD officers, Manhattan’s newly-elected progressive D.A., Alvin Bragg, retreated from several controversial edicts intended to make imprisonment “a last resort.” In a letter to his staff, Bragg emphasized the need to go after “people walking the streets with guns,” vowed to prosecute anyone “who harms or attempts to harm a police officer,” and rescinded instructions to downgrade armed robberies to misdemeanors if the victim was unlikely to be harmed.
2/4/22 New York City’s struggle against violence prompted a visit from President Biden and his Attorney General, Merrick Garland. Promising its new Mayor, former police captain Eric Adams, that the Feds would not “abandon our streets,” the President and his A.G. announced enhanced Federal efforts to stem the flow of firearms to criminals. Among these is a national “ghost gun” program and an emphasis on preventing illegal gun sales. Mayor Adams also called for enhanced ATF funding. DOJ release
2/3/22 With the proposed Floyd Act stalled, President Biden is working on a Presidential executive order that covers some of its ground. A leaked version retains language that tightens the use of lethal force by Federal agents substantially beyond Graham. But it removes a proviso that local police cannot receive Federal dollars unless they adopt like rules. Instead, funds would be allotted to police “in a manner that furthers the policy goals” of the order. While civil rights groups favor the language, the FOP finds it unacceptable, as implementing it could lead to “second-guessing” cops after the fact.
1/13/22 Reformist pressures recently led Chicago to create a “Community Commission for Public Safety and Accountability” to oversee the police. Ostensibly its powers include selecting the police commissioner and recommending and approving substantial changes to police practices. (For the official text click here.) Activists seem eager to move along. But a clash between the measure’s extensive provisions and the Mayor’s vision of the Commission’s authority have become evident.
1/10/22 Just appointed as NYPD Commissioner, Keechant Sewell, former chief of detectives in Nassau County, issued a department-wide e-mail sharply criticizing D.A. Alvin Bragg’s decision to avoid seeking jail time for lesser crimes. Commissioner Sewell wrote that the new chief prosecutor’s relaxed approach threatened “your safety as police officers, the safety of the public and justice for the victims.”
1/6/22 Alvin Bragg, Manhattan’s new, progressive District Attorney, is forbidding his staff from filing charges for low-level misdemeanors such as fare avoidance, prostitution and resisting arrest unless a felony was also committed. A promoter of alternatives to incarceration such as community service and restorative justice, Bragg leans on his experiences growing up as a Black youth in violent Harlem. Police, though, fear that his approach will embolden evildoers and encourage lawbreaking.
12/18/21 Jose Garza, Travis County’s (Austin, TX) new, progressive D.A., promised voters he would go after rogue cops. Since his swearing-in last January, five officers, two deputies, a sheriff, and a prosecutor have been indicted on charges from evidence tampering to murder. But members of his own staff, along with police and outsiders, complain that the quest for reform set back the fight against crime and led to the highest murder total in decades. It’s also led to a thinning of police ranks, with 100 officers leaving.
12/13/21 D.C. police chief Robert J. Contee has argued against a law that would require special permission from a judge to charge a juvenile as an adult, no matter the crime. Now he’s objecting to a proposed bill that prohibits consent searches of persons under 18 and makes their custodial statements inadmissible if they haven’t first received “a reasonable opportunity to confer with an attorney.” Proponents argue that police now take advantage of juveniles’ lesser sophistication about such things.
12/7/21 In the Illinois Governor’s race, one political party (the “Reds”) is citing the sharp increase in violent crime as proof that the “Blues,” led by Governor J.B. Pritzker, have ignored the real threat to life and limb that voters face. But the “Blues” complain that the “Reds” are “racializing” things to appeal to suburban Whites. Pritzker may have become more vulnerable because earlier this year he signed a progressively-minded criminal justice bill that, among other things, ends cash bail in 2023.
11/22/21 The recent slaying of an international student, and the robbery “at gunpoint” of a university worker, finds one of the nation’s premier places of learning, the University of Chicago, at the mercy of the violence and gunplay that besets its surroundings. Officials and campus staff want a larger police presence, outside and within. Chicago’s police chief agrees. “Having a large presence will not only add to safety but also the perception of being safe.” But others disagree. “The proof is literally in the existence of University of Chicago and the fact that it can sit inside one of the most terrorized neighborhoods when it comes to gun violence and think that epidemic shouldn’t touch their campus.”
11/11/21 Nearly two years into his term, San Francisco D.A. Chesa Boudin is facing recall over complaints by citizens and staff that the ex-public defender lacks the enthusiasm to fight the surge in violent crime. Even some boosters have turned. According to a disenchanted former homicide prosecutor, while Boudin “ran on a platform of being progressive and reform focused, his methodology to achieving that is simply to release individuals early or to offer very lenient plea deals.”
11/3/21 By a 56.1% to 43.8% margin, Minneapolis voters turned down a ballot measure to replace the police department with a “public safety” agency that did not necessarily include armed officers. Citizens dismayed by the killing of George Floyd but beset by a jump in violence were put off by the proposed agency’s vague shape and function. “I think we need to do some changes, maybe make some reforms, but...they've had a year to come up with something other than...Oh, we're going to do this or that.”
11/1/21 “We need the police -- there’s no other way I can say that.” Bishop Divar Kemp, a Baptist minister in Minneapolis’ violence-beset North side, is all for reform. But he opposes replacing police with an agency that offers a “comprehensive public health approach to safety,” as the ballot measure being voted on tomorrow would do. Sponsored by the progressive “Yes 4 Minneapolis,” it would not require the use of armed officers, and leaves it to the Mayor and City Council to decide how best to proceed.
10/19/21 In August 2016 two Tahlequah (Okla.) officers shot and killed an intoxicated man who wielded a “claw hammer” as he refused to leave his fearful ex-wife’s residence. In November 2016 a Union City (Calif.) officer briefly knelt on the back of an angry, knife-wielding man who was forcibly subdued after he threatened his girlfriend and her children with a chainsaw. In both cases Federal appeals courts ruled that qualified immunity did not shield the officers from lawsuits. But on October 18, the Supreme Court held that qualified immunity applied. Decisions: Tallequah Union City
10/11/21 Warnings by officers and police unions that doing away with “qualified immunity” would financially devastate many cops and lead massive numbers to resign have led legislators to abandon such efforts throughout the U.S. And while seven states have passed laws restricting qualified immunity since 2020, only Colorado completely bars its use. Even there, officers must be reimbursed should they lose.
9/23/21 Facing an insurmountable struggle, Democrats gave up trying to gain passage of the Floyd Act in the Senate. According to the bill’s sponsors, their Republican opponents wrongly characterized the bill as a way to “defund” police while ignoring its true purpose, “to make our neighborhoods safer and mend the tenuous relationship between law enforcement and communities of color.”
9/19/21 Presently awaiting Governor Gavin Newsom’s signature, California Senate Bill 2 would empower the State to investigate instances of alleged police wrongdoing and revoke the peace officer licenses of officers found at fault, thus barring them from further work as a cop. According to one of the principal authors, Los Angeles-area State Senator Steven Bradford, “we’ve seen 150 years of police policing themselves and it doesn’t work.”
9/17/21 Thanks to the Minnesota Supreme Court, Minneapolis residents will soon be voting on a proposal by to The Justices’ decision overrules a lower court’s removal of the measure from the city ballot because it seemed “so complex that voters cannot be expected to understand the meaning or essential purpose.”
7/22/21 A new Chicago law established a paid civilian board to oversee the police. It will include a seven-member “Community Commission” appointed by the Mayor and a three-member “council” at each police district. Members will have a substantial say over police policy and the authority to dismiss the police commissioner, but only if the Mayor concurs. While the council’s Black caucus was strongly in favor, police officials and some council members are skeptical. “This...is going to make every potential police officer think about going in another direction,” said a council member who opposed the move.
6/25/21 A “workforce survey” conducted by the Police Executive Research Forum that compared two consecutive one-year periods revealed that during the second period, April 20-March 21, police hiring fell five percent, resignations increased eighteen percent, and retirements leaped by forty-five percent. A New York Times story reports that officers are stressed at being “villified.” Many feel they are being asked to do too much and object to being held accountable to ever-stricter rules. And as recruitment becomes more difficult, some agencies are lowering educational and other requirements.
5/19/21 Responding to political and interest group concerns about abusive policing, Washington State Gov. Jay Inslee signed a dozen new laws to regulate police practices. One new section prohibits chokeholds and neck restraints. Another regulates the use of force. Among other things, it requires that officers de-escalate whenever possible and only use deadly force “when necessary to protect against an imminent threat of serious physical injury or death to the officer or another person.” NPR review
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PRESIDENTIAL EXECUTIVE ORDER ON POLICING (May 25, 2022)
Order White House fact sheet IACP fact sheet
“Why do Officers Succeed?”
Full Stop Ahead Punishment Isn’t a Cop’s Job RIP Proactive Policing? Let’s Stop Pretending
The Usual Victims A Recipe for Disaster Fair but Firm Going Ballistic Routinely Chaotic
Is it Always About Race? More Rules, Less Force?
WANT HAPPY ENDINGS? DON’T CHASE
Pursuits can lead to tragedy. Options are often available.
For Police Issues by Julius (Jay) Wachtel. Here are two extracts from one of our very first essays, “When Cops Kill”:
Police work is done in an uncertain environment. Making it perfectly safe for cops can make it perfectly dangerous for everyone else. Those loath to take personal risks should be encouraged to look for a different line of work.
A minority of officers use a majority of force. Personality traits such as impulsivity must be proactively sought out and addressed, hopefully before hiring, no later than during field training.
And here’s an outtake from a more recent piece, “Working Scared”:
Some cops may be insufficiently risk-tolerant; others may be too impulsive. Poor tactics can leave little time to make an optimal decision. Less-than-lethal weapons may not be at hand, or officers may be unpracticed in their use. Cops may not know how to deal with the mentally ill, or may lack external supports for doing so. Dispatchers may fail to pass on crucial information, leaving cops guessing. And so on.
Click here for the complete collection of compliance and force essays
When it comes to shaping outcomes, officer personalities and skill sets, the availability of human and material resources, and the quantity and quality of information are clearly important. And that’s not all. We’ve often mentioned “confirmation bias,” the all-too-human tendency to interpret things in a way that’s consistent with one’s pre-existing understandings and beliefs. That can affect what both cops and citizens do.
Got it? Let’s apply these methods to a real-life tragedy. Say, the June 18, 2020 shooting death by Los Angeles County Sheriff’s deputies of Andres Guardado.
According to the Sheriff’s Department two deputies from the Compton station were in their cruiser patrolling a high-crime area when they observed Andres Guardado, an 18-year old youth with whom they were unacquainted, chatting with the occupants of a vehicle that had parked in front of the driveway of an auto body shop. Mr. Guardado, they noticed, had a handgun. They pulled over and moved to confront him. He noticed and promptly ran off. (This surveillance video depicts the start of the chase. Mr. Guardado is on the right, one of the two deputies is on the left. Neither wore a body cam.)
What the L.A.S.D. release doesn’t explain is why Deputy Miguel Vega would soon shoot Mr. Guardado dead. That justification was provided to reporters by the deputy’s retained lawyer. He said that Mr. Guardado lay down on his stomach as if to surrender, but that as Deputy Vega approached with handcuffs the youth reached for the handgun he had thrown down during the chase. That account was seconded by the lawyer for Vega’s partner, Deputy Christopher Hernandez, who didn’t shoot. The handgun they reportedly recovered, a .40 caliber pistol, lacked a serial number and had been assembled from parts. In effect, it was an untraceable “ghost gun.” It had apparently not been fired.
In the video Mr. Guardado doesn’t seem to flaunt a gun. Otherwise what happened is indistinct. Of course, the deputies had a far better view. They also had abundant reason to look closely. Only a week earlier there had been a shooting at the shop (see left). A search of the business turned up items beloved by drug abusers, including copious amounts of nitrous oxide gas and supposedly some meth. (Click here for stills and video related to the raid.) Surveillance camera footage seized from the business depicts a whole lot of foot traffic for an auto body shop. Mr. Guardado was in street clothes. His presence and manner naturally provoked the deputies’ interest. Was this fellow involved? Might he be directing customers to a new source?
According to the owner of the business everything was legit. Mr. Guardado, he said, was working security:
We had a security guard that was out front, because we had just had certain issues with people tagging and stuff like that. And then the police came up, and they pulled their guns on him and he ran because he was scared, and they shot and killed him. He’s got a clean background and everything. There’s no reason.
We obtained a copy of the official coroner’s report. It indicates that Mr. Guardado suffered five bullet wounds, all in the back; each was considered fatal. There were also two graze wounds to his forearms (the deputy reportedly fired six or seven times.) Check out the diagram. Mr. Guardado was fully turned away from the officer when he was shot. If he reached for a gun, he didn’t get very far. No drugs or alcohol were detected in Mr. Guardado’s system, and the young man seemed otherwise healthy and fit.
Now for some really curious stuff. Sheriff Alex Villanueva has long sought to keep outsiders, including County officials, from meddling with things. He strongly objected to the autopsy’s release (he said it would impair his investigation) and accused the Coroner of publicizing the results “to satisfy public curiosity.” He also opposed holding a formal inquest with witnesses and such. And when the event was held – it was the County’s first in thirty years – the only evidence that came in was from the autopsy. Both deputies, along with the two homicide detectives who investigated the shooting, invoked their Fifth Amendment rights and refused to testify.
And now for even more curious stuff. A few days after the inquest (it was held on November 30) Sheriff Villanueva relieved deputies Vega and Hernandez of duty. No, it supposedly had nothing to do with Mr. Guardado. Instead, the Sheriff’s move supposedly stemmed from a traffic accident last April that injured a prisoner in a patrol car driven by Deputy Vega.
Why did the Sheriff wait eight months to suspend the deputies? Was Deputy Hernandez involved? As of yet, the circumstances seem impossibly murky. We know little about the deputies. According to the L.A. Times, Deputy Vega, who shot Mr. Guardado, is an eleven-year veteran. His most serious recent faux-pas was a four-day suspension in 2017 for either making false statements or failing to “properly screen a jail inmate.” More recently he was accused of using “unreasonable force” (the complaint was dismissed for lacking merit) and, twice, for alleged discourtesy. Deputy Hernandez’s disciplinary history was unspecified. A troubling allegation, though, has surfaced about the duo. In an unrelated civil rights lawsuit, fellow Compton station deputy Austreberto “Art” Gonzalez testified that Deputies Vega and Hernandez were prospective members of the notorious “Executioners” deputy clique. (They deny it.) Deputy Gonzalez also said that it was common practice for Compton deputies to justify chases by falsely claiming they saw a gun.
Mr. Guardado’s survivors sued the County in August. They allege that Compton deputies are poorly selected, ill-trained and inadequately supervised. Consequently, they habitually lie, misuse force and participate in “gangs.” But misconduct is mostly ignored. Here’s an extract from the massive civil complaint:
54. Defendants further breached their duty in that defendants Los Angeles County Sheriff's Department and County of Los Angeles deputies who were at the scene of the subject incident, including defendants Deputy Miguel Vega, Deputy Chris Hernandez, and DOES 1 through 50, and each of them, had a history of bad traffic and pedestrian stops, improper uses of force, improperly discharging their firearms, failing to follow proper procedures, and making false statements during investigations. Yet, the deputies were never disciplined, or were not disciplined properly, and were never trained or re-trained properly, and were never removed from service.
As one might expect, Mr. Guardado’s family and friends had only good things to say about the teen. He graduated from high school, was attending a technical college and held down two jobs, including as a security guard at that body shop. (According to the Sheriff the youth wasn’t licensed as a guard and was too young to be an armed guard.)
Well, those are some of the “facts.” Now all that’s left to figure out is the “why.”
Once again, check out the video of the encounter. There really is no other conclusion: Mr. Guardado purposely ran off. But why? After all, he was supposedly a security guard! According to his boss, Mr. Guardado got scared when deputies inexplicably charged at him. Still, we wonder. Look at the photos, video and the news account about the search of the body shop. Was something beyond car repair going on?
Unlicensed carry is forbidden in California. Ditto, selling handguns to persons under twenty-one. According to the Sheriff, Mr. Guardado’s ghost pistol had a California-illegal extended magazine loaded with thirteen rounds. Did he assemble the gun from parts? Illegally buy it ready-made from someone else? Indeed, just who was Andres Guardado? His employer’s questionable bonafides, the youth’s flight and the gun leave us wondering.
Our concern extends to the deputies as well. Even if Mr. Guardado did go for a gun, Deputies Vega and Hernandez worked at the troubled Compton station, refused to testify at the inquest, and were ultimately suspended for something else. Still, there is that video. They took off after Mr. Guardado for a reason. Their justification – that the youth was armed – seems legitimate, and they reportedly seized a gun. Unfortunately, there is no body-cam video (according to the Sheriff body-cams won’t be in wide use for another year.) All we have to explain why deputy Vega fired is what he said.
Bottom line: Mr. Guardado was wrong to flee, and in so doing he inarguably helped set the stage for a disastrous ending. We’ve written about similar episodes, most recently the police killings of Jacob Blake in Kenosha and Rayshard Brooks in Atlanta. In both cases officers had ample reason to intervene and their reasons for chasing seem justified. But here’s what’s so distasteful. Neither Mr. Blake nor Mr. Brooks nor Mr. Guardado were career criminals. They were more or less peaceably going about their business when officers showed up. That cops would soon shoot them dead seems vastly disproportionate. It’s shocking.
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Most cops and students of policing surely find such outcomes dispiriting. Still, cops are human. Once they’re chasing someone who’s resisting or may be armed, adrenalin rules. One of our earliest posts, “The Chase is On,” reported on the fatal shooting of Darrick Collins by L.A. County deputies. Mr. Collins apparently resembled a suspected robber and fled when officers approached. In the end, the innocent man made a “threatening motion” and was shot dead. Our analysis led to some unpleasant observations. Here’s an extract:
Pumped up on anxiety and adrenaline, with little opportunity to observe or reflect, it’s inevitable that [officers’] split-second decisions will occasionally prove to be tragically wrong.
Unless academies can produce Supercops who are unaffected by stress and fatigue and can see in the dark, prohibiting one-on-one foot pursuits may be the only option.
Short of outright prohibiting chases – after all, some are undoubtedly justified – here’s another “option.” Rushing in isn’t always necessary. Deputies Vega and Hernandez could have driven on, parked their vehicle out of sight and called for backup. A bit of planning and staging could have avoided an adrenaline-charged confrontation and the violence that such encounters can easily bring on.
11/2/22 Los Angeles County is paying $47.6 million to settle five excessive force claims against Sheriff’s deputies. Among these is the June 18, 2020 shooting death of Andres Guardado, an 18-year old who was armed and ran from officers but did not threaten them with his gun. Two payouts exceeded $16 million. Both involved mentally-troubled youths encountered at their homes. One went to the family of Timothy Neal, who was shot and left paraplegic after flaunting knives at deputies, and the other to the family of Eric Briceno, who died after a violent struggle and use of the Taser.
6/23/22 Given urgency by the fatal shootings of Adam Toledo and Anthony Alvarez last March, Chicago PD’s foot pursuit policy is done. It’s quite elaborate. Among many other things, officers must have “reasonable articulable suspicion” or probable cause that someone committed or was about to commit a felony, a Class A misdemeanor (e.g., trespass, petty theft), a dangerous traffic offense or “an arrestable offense that poses an obvious physical threat to any person.” They must also weigh crime seriousness and the need to “immediately apprehend” against risks to themselves and others.
5/20/22 Chicago police officers stopped a vehicle that four carjackers had reportedly used to escape from suburban police. Two young males fled; officers chased after one and shot him. He turned out to be thirteen years old and, apparently, unarmed. He was seriously wounded. Chicago PD’s foot-chase policy, which was flagged for revision after officers shot and killed Anthony Alvarez last year, remains a work in progress.
5/3/22 Twelve-year old Thomas Siderio was riding a bicycle when plainclothes Philadelphia officers tried to stop him and a 17-year old companion March 1. Siderio opened fire with a handgun, shattering the police car’s back window, and ran off. Officer Edsaul Mendoza chased Siderio on foot, and soon shot the boy dead. But according to investigators, Siderio had already tossed his gun, and the cop knew it. Officer Mendoza was fired and has been charged with murder. Meanwhile Siderio’s father is reportedly about to be imprisoned on gun charges that were reduced from murder.
4/15/22 On April 4 a Grand Rapids (Mich.) police officer pulled over a car driven by Patrick Lyoya because its license plate reportedly didn’t match the vehicle. Lyoya was uncompliant and ran away; the officer promptly caught him and they wound up wrestling on the ground. A bodycam soon records the officer yelling that Lyoya took his Taser. The officer then fired his gun into Mr. Lyoya’s head, inflicting a fatal wound. Protests are now rocking the city. Police press conference and bodycam video
3/16/22 Cook County chief prosecutor Kim Foxx criticized Chicago police for chasing Anthony Alvarez. But Alvarez was holding a gun, and Foxx decided that given the circumstances there was insufficient evidence to charge the officer who shot him, Eric Solano, with a crime. Ditto, officer Eric Stillman, who shot and killed Adam Toledo at the end of a foot chase two days earlier. Toledo apparently dropped his gun an instant before he was shot, but Foxx said the officer had no time to react. Both cops, she said, “feared for their lives,” but a foot chase policy - one is supposedly in the works - is badly needed.
2/24/22 Family members of Anthony Alvarez, who was killed by Chicago police during a foot chase in March 2021, filed a Federal lawsuit against the city and Evan Solano, the officer who shot him. They criticize the absence of a foot-chase policy and the officer’s decision to fire even though Alvarez, who was armed with a handgun, had not committed a crime and did not move to threaten him. Chicago’s foot chase policy is still on the drawing boards, and its investigation of the shooting has not been completed. Meanwhile officer Solano’s peace officer powers have been suspended.
10/9/21 Just released, the Jan. - June 2021 report by the Independent Monitor overseeing reforms at Chicago PD criticizes the agency for its continued failure to enact a permanent foot-pursuit policy in the wake of the killing of Adam Toledo. According to the monitor, the temporary policy, “remains unsatisfactory to the OAG, the IMT, and many in Chicago’s communities.” Click here for the full report.
9/25/21 Veteran D.C. police officer Terence Sutton was charged with murder and a colleague was accused of conspiracy and obstruction in the death of Karon Hylton, 20 on October 23, 2020. Hylton, who was riding an electric moped, was struck and killed by a vehicle as Officer Sutton and his colleagues in an anti-crime team pursued him, ostensibly for riding on the sidewalk and not wearing a helmet. However, D.C. police regulations prohibit pursuits for traffic violations. But Sutton’s lawyer insists that the officer knew Hylton and was chasing him because he thought Hylton was armed. Hylton had a record for marijuana sales and other offenses and was pending charges for assaulting a police officer.
9/11/21 A RAND questionnaire about officer “subgroups” (i.e., cliques) was distributed to the L.A. Sheriff Dept.’s 10,000 sworn deputies. It was completed and returned by 1,608, including 16.5% (529) of its 3,202 member patrol force. Substantial proportions of respondents agreed that the groups were more common in high-crime areas and expected members to be hard workers, aggressive, and make many arrests. Only sixteen percent of respondents said they had been invited to join a subgroup. Of these, only 15 percent agreed that joining would have necessarily involved them in violating policy, and 22 percent said that they would have been expected to ignore such behavior by their colleagues.
9/4/21 Chicago PD has delayed making its new foot pursuit policy permanent. Officials say they are continuing to gather reactions to the complex measure from “community partners” and police officers. In addition, the Federal judge who oversees the agency’s consent decree has reportedly asked for more time and information so as to better assess the measure before it goes into its final form.
7/22/21 Concerned that the “Executioners” deputy gang is running things, Calif. Rep. Maxine Waters has asked the Feds to conduct a “pattern or practice” investigation at the Los Angeles Sheriff Dept’s violence-ridden Compton station. That’s where two reported “prospects” for the Executioners fatally shot Andres Guardado in June 2020. Deputies have long complained of tattooed station-house cliques that encourage misbehavior, set arrest quotas and, as a deputy recently testified, celebrate shootings.
5/26/21 Chicago PD issued a foot pursuit policy inspired by the death of Adam Toledo. Among other things, it restricts them to, at a minimum, serious misdemeanors, and to situations where an officer has probable cause to arrest or believes a crime was or is being committed. Officers must consider alternatives such as surveillance and containment and avoid visually separating from their colleagues.
5/2/21 Spurred by the shooting death of 13-year old Adam Toledo, Chicago PD policy under development would restrict foot chases to situations where officers have legal authority to detain or arrest. It urges them to avoid separating from partners and to use containment methods to corral fleeing subjects until additional resources arrive. Meanwhile community members remain deeply divided about the youth’s killing. While some condemn the officer’s actions, others criticize the circumstances that led a child to run around with an armed gang member at one in the morning.
4/29/21 It was about 1:00 am on March 31. For unknown reasons, two Chicago police officers were furiously running after Anthony Alvarez, 22, through a residential area. Alvarez had a gun in hand. After a prolonged chase, an officer cornered Alvarez and, as he ran up some stairs, shot him dead. Video footage shows that Alvarez had just dropped his gun; as best is known, he had never pointed it at police.
4/16/21 Images from a parking lot surveillance camera suggest that Adam Toledo tossed his gun under a fence a moment before he turned towards the officer and was fatally shot (see below update.)
4/11/21 A 21-year old man on probation for a gun crime opened fire in a violence-beset Chicago neighborhood as a vehicle passed by. Shot-spotter devices alerted police, and officers quickly appeared. The suspect bolted but was promptly arrested. His companion, 13-year old Adam Toledo, also ran off. He now had the gun. Officers say that the youth turned at them with the weapon, and they shot him dead.
2/11/21 An Idaho Falls, Idaho police officer mistakenly shot and killed an armed homeowner who appeared in his own backyard as officers chased after a supposedly armed man who fled from a traffic stop. He was found hiding in a nearby shed.
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