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Solvency—States Solve Policing

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Solvency—States Solve Policing

State legislative reforms can assure police accountability.

Stoughton et al. 20 - Professor of law at the University of South Carolina.
(Seth Stoughton, Jeffrey J. Noble, Former deputy chief of police at the Irvine Police Department in California, Geoffrey P. Alpert, Criminology professor at the University of South Carolina, 6-3-2020; "How to Actually Fix America’s Police," Atlantic,
STATE INTERVENTION State legislatures, which can often move much faster than the pace of national politics, have their own five objectives to focus on. To begin with, 36 states have statutes that govern the use of both deadly and nondeadly force, while six states have statutes only for deadly force. More than three-quarters of the 58 total state statutes (some states have more than one) were adopted prior to or during the 1970s, and most have not been recently amended. In the absence of statutes, states regulate police use of force through judicial decisions. But even where state statutes do exist, the courts that interpret them unfortunately tend to rely on the Fourth Amendment law. This is a problem for two reasons. First, the Fourth Amendment regulates police seizures, but state law is supposed to regulate use of force, and not all uses of force count as seizures. (Several courts have held, for example, that an officer shooting at someone but instead striking a bystander does not constitute a seizure.) State law is supposed to be broader than the Fourth Amendment, which means that referring to Fourth Amendment doctrines in the interpretation of state law can provide less protection than state lawmakers intended. Second, and perhaps more important, those Fourth Amendment doctrines are a mess; they provide little meaningful guidance that officers in the field can use to determine when and how much force to use, and the guidance they provide to courts reviewing use of force is often flawed. Worse, many of the state statutes and common-law doctrines are contrary to good practices. Some states allow officers to use force to make an arrest if they believe the arrest is lawful, even if it isn’t and their belief is unreasonable. Others are woefully outdated, and still provide a defense to officers who use deadly force to prevent the escape of a fleeing felon. And most states authorize officers to use “reasonably necessary” force, but do not bother to define what reasonable force is or explain how officers should determine that it is necessary. Very few states admonish officers to use appropriate tactics or punish officers for egregious mistakes that contribute to avoidable use of force. States can do better. In the past several years, for example, both Washington State and California have amended their statutory regimes, giving officers the authority to use force in the situations that require it while also providing meaningful guidance to officers and courts about what those situations are. California allows officers to use deadly force against “imminent threats of death or serious bodily injury,” and says that an “imminent threat” exists when “a person has the present ability, opportunity, and apparent intent” to cause such harm. Definitions like this, which draw from best practices in policing, give officers the leeway to protect themselves and others while also prohibiting them from acting on unfounded or purely speculative fears. State legislatures can also amend law-enforcement officers’ bills of rights and the laws that govern the collective-bargaining rights of police unions. Most states permit or encourage collective bargaining for police unions—even states that, like Wisconsin, otherwise take a dim view of public-sector unions. Police unions do some good work; research suggests that officers at unionized agencies are, on average, higher paid and more professional than officers at nonunionized agencies. However, unions have leveraged the collective-bargaining process to create labyrinthine procedural protections that can make it exceptionally difficult to investigate, discipline, or terminate officers. Some of the limits on investigation—such as delaying interviewing an officer after a critical incident for several “sleep cycles”—are based on faulty reasoning and have been thoroughly debunked by credible scientific research. Too often, discipline is precluded by unnecessary or inappropriate procedural violations; in some cities, for example, civilians can file a complaint only during a limited period after an incident, sometimes as short as 30 days. When officers are disciplined, that discipline is subject to grievance and arbitration procedures; at one agency, a study found that arbitrators “routinely cut in half” the severity of disciplinary sanctions imposed by agency management. Officers should have a right to appeal disciplinary findings, but only when they are arguing that the agency’s decision was arbitrary and capricious or that the agency did not act in good faith. By protecting bad officers, collective-bargaining agreements and state laws contribute to misconduct. Further, state legislatures can do a better job of certifying and, when necessary, decertifying officers. Currently, most states require most officers to be certified by a standards-and-training commission. Such commissions set minimum training requirements, but state law can impose specific training that the state commission has, thus far, omitted from the academy curriculum. Washington State, for example, now requires both violence de-escalation training and mental-health training, and the commission must “consult with law enforcement agencies and community stakeholders” in developing that training. And while most states allow for decertification—which prevents someone who has engaged in misconduct from continuing to work in that state as an officer—that authority can be tightly limited. In some states, an officer can be decertified only after a criminal conviction for a felony or serious misdemeanor. Even in states that have more permissive decertification regimes, decertification is often used only sparingly. From the 1960s until 2017, only about 30,000 officers were decertified, and three states—Florida, Georgia, and North Carolina—make up about half of those. As the decertification expert Roger Goldman has said, that isn’t because those states have a higher proportion of bad officers; it is because those states “have very active decertification programs.” States have good reason to strengthen their commitment to policing the police: According to a recent study, officers who are hired by another police agency after being terminated or resigning in lieu of termination from a prior agency are more likely than other officers to engage in future misconduct. A persistent culture of secrecy regarding personnel matters has not helped. Many states have sharply limited the public’s right to access officers’ disciplinary files or agency use-of-force investigations. Although there is, and must be, room for certain employee information to be kept confidential, an officer’s actions while dealing with members of the community and the steps that an agency takes to investigate those actions are clearly matters of public interest. The states that have passed broad sunshine laws, such as Florida, have taught us that public access can be a crucial component of police accountability without impeding proper police action. States that allow agencies to shred disciplinary records after a set period, sometimes as short as six months, are effectively making patterns of misconduct by problem employees significantly more difficult to detect. States should follow the lead of Florida and, more recently, California in passing public-records laws ensuring that disciplinary records and reports pertaining to critical incidents such as police shootings or other serious uses of force cannot be hidden. Finally, states can rethink their approach to criminalization. “Overcriminalization” has been broadly discussed; there are so many laws that violations are ubiquitous. If everyone is a criminal, officers have almost unfettered discretion to pick and choose which laws to enforce and whom to stop, frisk, search, or arrest. And, as the saying goes, when all you have is a hammer, every problem looks like a nail. For too long, the hammer of criminal law has been used against a wide array of social ills. The result is police over-involvement in matters that would be far better left to other government institutions and social-service providers, including school discipline, poverty, homelessness, and substance abuse. The opioid crisis remains a stark reminder that the United States cannot arrest its way out of addiction. The troubling discrepancies between how police have been cast as soldiers in the War on Drugs—a war that, despite almost identical drug-use rates between white and black Americans, is fought mostly in poor and minority communities—and how police have been seen as an adjunct to the public-health authorities addressing opioid abuse in suburban middle- or upper-class neighborhoods should be a stark warning for state legislators to rethink the scope of criminal law.

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