At the federal level, Congress should focus on three objectives.
The first is getting rid of qualified immunity. Qualified immunity is a judicial doctrine that protects officers who violate someone’s constitutional rights from civil-rights lawsuits unless the officers’ actions were clearly established as unconstitutional at the time. As the University of Chicago legal scholar William Baude has persuasively argued, the Supreme Court has provided multiple justifications for qualified immunity—including that it is the modern evolution of a common-law “good faith” defense, and that it ensures that government officials are not exposed to liability without “fair warning” that their actions are wrong—but neither the Court’s historical nor doctrinal justifications can bear the burden of scrutiny. Nevertheless, as the Court has described it, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
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.
Read more at The Atlantic