1. Abolish Qualified Immunity.
The doctrine of qualified immunity shields government officials from financial liability, even if they have violated the Constitution, so long as they have not violated "clearly established law." According to the Supreme Court, the law is only "clearly established" if a prior decision has held very similar facts to be unconstitutional. In theory, qualified immunity is supposed to protect public officials from vacuous lawsuits that might hinder their job performance. In actuality, it often allows them to get away with offenses that would land a normal person behind bars. Police officers may be entitled to qualified immunity even if they have engaged in clear misconduct, even if they knew what they were doing was wrong, and even if their own actions could be considered criminal in nature. Courts across have granted police officers qualified immunity in cases where the defendants searched homes without probable cause, arrested people without probable cause, stole property in police custody, fabricated evidence, and used outrageously excessive force. The doctrine was created solely by the Supreme Court and has no basis in the Constitution. To the contrary, many commentators and organizations across the ideological spectrum believe that it is contrary to the Constitution and federal law, including the Civil Rights Act of 1871, which was the act that first authorized individuals to sue state and local officials, including police officers, for violations of civil rights.
Police officers are fully aware of qualified immunity and know that it will shield them from liability in virtually all cases. It makes them indifferent, if not hostile, to the rights of those they are supposed to be protecting and serving. The doctrine should be abolished.
2. Put Police on the Hook Financially and Get Real About Discipline.
Even when police officers are held liable in civil-rights suits, studies have shown that more than 90% of the time, they do not bear the financial costs of the judgments they are ordered to pay. Instead, their employing municipalities end up on the hook, which shifts the cost of police misconduct onto the taxpayers. Doctors, lawyers, public-works contractors, and a host of other businesses and professionals are required by laws or regulations to carry liability insurance, and so should police officers. Moreover, each officer should be required to fund the cost of his or her own insurance. This would also provide a way to weed out cops with records of misconduct. Police with a history of accusations or adverse judgments would swiftly find the cost of insurance too high to remain in the profession, and other police would know that tolerating the bad cops on their force will lead to increased rates for their own insurance. Bad cops would be priced out of the market by the rising cost of their own insurance and would naturally be forced to find work elsewhere.
Police know that even if they get hit with a judgment, they won't have to pay. That needs to change. Requiring them to maintain insurance means they have more skin in the game to be responsible for their own behavior.
Putting cops on the financial hook should also carry over to discipline. Many police who are found to have committed even serious misconduct often get nothing more than desk duty or a paid suspension. Police officers who commit misconduct not worthy of termination should still face significant penalties in the form of lost wages, rank demotions, or loss of seniority. No one is dissuaded by the "threat" of a free paid vacation.
3. Create Independent Oversight Boards to Investigate Misconduct.
When a lawyer at a certain law firm is accused of malpractice, we don't allow the other lawyers at that firm to investigate the alleged misconduct. When a doctor is accused of malpractice, we don't permit the other members of the same medical practice to determine whether their own coworker did something wrong. But police accused of misconduct are typically "investigated" by members of the exact same police department. That needs to stop.
Studies of police internal-affairs investigations have revealed a pro-police bias in which the investigators often view their goal as exonerating the officer rather than conducting a fair and impartial investigation of the alleged misconduct. Cops should not be permitted to investigate themselves. Accusations of police misconduct should be investigated in independent tribunals that are as distanced from local police and politics as possible, such as boards that operate on a statewide basis.
4. Shift Prosecutorial Decisions Away from Local Officials.
Local state/district attorneys work closely with police on a daily basis to investigate and prosecute crimes. That close working relationship creates a conflict for those same prosecuting attorneys when it comes to accusations of police misconduct. DAs know they need the cooperation of the police in order to do their jobs, and that cooperation might be threatened or withdrawn if the DAs prosecute cops. This is one of the reasons that many police officers are never charged with crimes, even for egregious misconduct.
In order to avoid these conflicts of interest, prosecutorial decisions for police should be made by officials who are not beholden to—and have no relationships with—local police departments.
5. Curtail the Police Unions.
Police unions are one of the major structural obstacles to holding rogue police officers accountable. Over and over again, unions have defended bad policing and bad police. Multiple investigations reveal that police-union contracts in major cities routinely include provisions that erase disciplinary records, obstruct meaningful discipline (let alone prosecution) of police officers who abuse their authority, and give police privileges that are not afforded to the broader public. For example, union contracts often prevent officers from being questioned after incidents, give them access to information not accessible to private citizens, require cities to shoulder the financial burdens of officer misconduct, and limit disciplinary measures.
Police are public servants granted enormous power over the citizenry. They are tasked with protecting the public and serving their interests. We literally give them guns and authorize them to kill if necessary for the sake of public safety and security. Police unions, in contrast, are tasked with protecting their members and serving their interests—even if those police interests are in direct contravention of serving the public. That distinction makes police unions a barrier to reforms aimed at improving public safety and increasing oversight of how law enforcement behaves.
Police unions should be permitted to continue to negotiate salaries, benefits, and other basic terms of employment. That's what a union does. But no union contract should be permitted to limit methods of discipline, shift any financial responsibility for wrongdoing or criminality, expunge or hide records of misconduct (all of which should be public records), or give the police any substantive or procedural rights that are not available to any member of the public.
6. End "Gypsy Cops" with National Databases and Prohibitions on Employment.
Even when police are terminated for misconduct, they often just end up working for a new police department in the next county or next state. These "gypsy" cops roam from department to department, often staying for a few years before accusations of misconduct move them on. Due to poor record keeping of complaints and misconduct (often required by the union contracts mentioned in the preceding section), the new departments often aren't even aware of their new hire's history of misconduct or discipline. Police departments should not employ serial offenders.
At a minimum, states should cooperate on implementing a national compulsory database of police officers and police misconduct so that every department can conduct checks on its potential hires and have access to full and complete records of their employment history. And states should also prohibit serial offenders from continuing to work in law enforcement. For example, thanks to reciprocal agreements as to the disciplinary process, a lawyer disbarred in Pennsylvania will also be disbarred in any other state in which that lawyer might have a license to practice, and a history of disbarment is grounds to deny a lawyer a license in any new state where a lawyer might try to apply. No one wants to permit shyster lawyers to merely get a new job in the next state over. But cops can be fired from one department for gross misconduct and still get a police job in the next town, county, or state. That should not be allowed to continue. Police officers who are terminated for gross misconduct should be "disbarred" from reemployment in the profession.
7. Improve Police Training and Eliminate "Warrior" Training.
Police training is woefully insufficient. Both lawyers and police officers are charged with enforcing the law, but police receive vastly less training than lawyers. In fact, in many states, police receive less training than hairstylists, electricians, and other licensed workers. For example:
North Carolina — Barbers need 1520 hours of training; police officers only need 620.
California — Licensed cosmetologists need 1600 hours of training; police officers need 664.
Florida — Interior designers must have 1760 hours of training; police officers only need 770.
Massachusetts — HVAC technicians need 1000 hours of training; policemen need 900.
Louisiana — Manicurists need 500 hours of training; police officers only need 360.
It is patently ridiculous that someone needs twice the training to cut hair or paint fingernails than to carry a gun and enforce the law. The quality and duration of police training needs to change. Police need more and better training on the use of force, constitutional law and individual rights, deescalation, and recognizing and interacting with those suffering from mental-health issues, among other topics.
In addition to more and better training, the whole surrounding culture of police training needs to change. Current training often teaches police to fear the public and assume that everyone is out to kill them. Officers are trained to cultivate a “warrior mindset,” the virtues of which are further extolled in books, articles, and seminars. From their earliest days in the academy, many would-be officers are told that their prime objective is to go home at the end of every shift and that their daily survival requires treating the public with suspicion, if not hostility. Under this "warrior" worldview, officers are locked in intermittent and unpredictable combat with unknown but highly lethal enemies. But who are the enemies under this "warrior" view? The very members of the public that the police are supposed to protect and serve. "Warrior" training teaches cops to view their beats as battlefields and everyone who isn't a cop as a potential terrorist or enemy. This mindset necessary creates a barrier between the police and the public, with the "thin blue line" not being the police standing between the public and the bad guys, but rather representing the line between the police on one side and everyone else on the other.
Police also need more and better training on appropriate ways to interact with other people, especially those who might be intoxicated or physically or mentally ill. A search of the news media reveals multitudes of cases in which people who were suffering from a mental-health crisis were killed by the police who were called for help. For example, in 2015, Justin Way of St. Augustine, Florida, threatened to kill himself. He sat down on his bed, drunk, brandishing a knife that he said he intended to use on himself. His girlfriend, Kaitlyn Christine Lyons, called a non-emergency police number to get him help. She expected the authorities to institutionalize him for self-protection. Instead, two sheriff's deputies arrived, armed with assault rifles. They made Lyons wait outside while they stormed Way's room, shooting and killing him. Way had threatened his own life, not anyone else's, but police killed him anyway. What happened to Way has happened to hundreds if not thousands of other people. And it's not limited to mental illness. In 2014 Carl Leadholm was beaten and pepper sprayed by Colorado police after the police received reports that he was driving erratically. Police believed Leadholm was likely a DUI driver, and they believed they had proof when Leadholm didn't immediately pull over. But after eventually getting Leadholm's SUV stopped and beating the tar out of him, officers eventually realized they did not smell any liquor on his breath, nor did he have any symptoms of drug intoxication. In fact, Leadholm is a Type 1 diabetic who was in diabetic shock. And even after learning that they had beaten and arrested a man who was in a serious medical crisis, police still police cited him for reckless driving, failing to yield to an emergency vehicle, and resisting arrest. Not only were those charges dismissed, Leadholm sued the department and eventually settled for $825,000 (with the officers involved most likely not paying a penny).
Police cannot serve and protect the public when they are trained to be hostile to the public. Many police officers receive far more training on how to fire their guns or shock people with tasers than they do on deescalation, interpersonal relations, and how to recognize and interact with those who are physically or mentally challenged. When cops are trained to view the public as potential enemies out to kill them, and we give them far more training on how to shoot people than how to talk to people, is it any surprise that cops so often employ force—even deadly force—at the slightest provocation? "Warrior" training should be abolished and replaced with a greater focus on the appropriate use of force, deescalation techniques, interpersonal relations, and appropriate ways to recognize and deal with mental illness and crisis. Do police still need training on fighting and shooting? Absolutely. But training should instill the point that any use of force—whether in the form of a fist, pepper spray, taser, baton, or firearm—is a last-resort option and not the first option.
8. End the Blue Wall of Silence.
Police have a silence problem. As Anthony Bouza, a former NYPD commander and police chief of the Minneapolis Police Department from 1980 to 1989, once put it, "The Mafia never enforced its code of blood-sworn omerta with the ferocity, efficacy and enthusiasm the police bring to the Blue Code of Silence." This is unacceptable. Lawyers, for example, are under an ethical obligation to report the misconduct of another lawyer (or even a judge) to the appropriate disciplinary authorities. Caregivers for children are under a legal obligation to report even a suspicion of child abuse. Police should be under the same sort of obligation to report the misconduct of other officers.
If a police officer engages in misconduct in the presence of other officers, then those other officers should at a minimum be under a legal obligation to report that misconduct, and they should be subject to significant and meaningful discipline if they do not. Ideally, police should be required to step in and stop misconduct committed in their presence. Police reform is nearly impossible when cops willfully ignore and even protect the rotten apples among them. The blue code of silence must be crushed.
9. End the "War on Drugs" and Reduce the Number of Victimless Crimes.
In his 2011 book Three Felonies A Day: How the Feds Target the Innocent, civil-rights attorney Harvey Silverglate describes how federal criminal offenses have exploded in number and become impossibly broad and vague to the point where it is entirely possible that each and every one of us unintentionally commits a number of criminal violations every single day. States have been no less active in creating a multitude of new criminal offenses. And this isn't even necessarily including to the so-called "War on Drugs" which has been waging for decades, shows no sign of ending (or victory), and has turned literally millions of Americans into criminals.
Eric Garner was killed by police as they attempted to arrest him for the heinous crime of selling single cigarettes from packs without tax stamps. George Floyd's death in police custody arose out of his alleged use of a counterfeit $20 bill (and even if the bill was counterfeit we don't know if Floyd knew that). Walter Scott was killed by Officer Michael Slager (who was sentenced to 20 years in jail for the killing) during a traffic stop for a broken tail light. Every contact between police and the public represents another chance for something to go tragically wrong, and a host of petty laws only increases that number of encounters.
That is particularly true for drug offenses. The "war on drugs" rhetoric has been employed for decades, and if the police are told that they are soldiers in that "war," then it should come as no surprise that they treat even minor drug offenders as enemy soldiers. And the war on drugs has been particularly burdensome for minority communities, where higher rates of poverty induce higher percentages of people to pursue illegal ways to make money. Much of the friction between the police and minority communities can be placed squarely at the feet of the "drug war," and that won't get better until the drug war stops.
Minor offenses should either be converted into civil offenses with civil fines or eliminated entirely. Ending the war on drugs, which has disproportionately been focused on minority communities, would greatly reduce the interactions between the public and the police. Moreover, criminal offenses should be reserved only for behavior that actually causes harm to people or their property. If someone didn't pay a tax on cigarettes, then that is a matter for the taxing authorities—not the police. A profusion of petty, victimless "crimes" only increases the number of potential interactions between police and the public, and every encounter is an opportunity for something to go tragically wrong for either side.
10. End civil asset forfeiture.
Civil asset forfeiture permits police to charge property itself with a crime, and thus seize it. This permits police to seize your home, your car, or any other property without ever having to charge you with a crime. In many states, being innocent is not a defense. Even in states that permit the “innocent owner” defense, the burden of proof is on you: your property will be forfeited unless you prove that you are innocent. The police need only to show a preponderance of evidence that the property committed a crime. Civil asset forfeiture is closely related to the war on drugs, as it was intended to give law enforcement a tool to attack organized crime—especially drug dealers and their organizations.
In many states, the police get to keep what they seize. Cash? It goes into department's bank account. Cars? They can keep them or sell them. Houses? Auctioned off with the proceeds going into the department's bank account. And in most states there is next-to-no oversight over how that money is spent. Giving the police a tool to generate revenue for themselves simply by seizing any arbitrary property from any arbitrary person is a vastly corrupting power, and there are countless examples of police departments in every state outrageously abusing civil-asset forfeiture. Milwaukee sent 50 cops to Disney to attend a "Disney’s Approach to Business Excellence" seminar using forfeited funds. Officials in Texas spent over $50,000 in forfeited funds on tequila, rum, kegs, and a margarita machine. A sheriff's office in Georgia spent over $90,000 on a Dodge Viper for its DARE program. Colorado bought leather bomber jackets for the Colorado State Patrol. Albany, NY, spent over $16,000 for food, gifts, and entertainment for the police department.
Police have used civil asset forfeiture to literally turn into highway robbers. As related by the Institute for Justice in his March 2010 "Policing for Profit" report, in October 2007, law enforcement officials in Tenaha, Texas, pulled Roderick Daniels over for allegedly traveling 37 mph in a 35 mph zone. Upon discovering $8,500 in cash that the Tennessee man had planned to use to buy a new car, the officers took Daniels to jail and threatened to charge him with money laundering unless he would agree to surrender the cash. Daniels surrendered his property. “To be honest, I was five, six hundred miles from home. I was petrified,” he said. Daniels’ experience was far from unusual in Tenaha. Between 2006 and 2008, police stopped more than 140, mostly black, out-of-state drivers, including a grandmother from Akron, a black family from Maryland and an interracial family from Houston. Once arrested, officers took them to jail and threatened to file charges unless they signed pre-notarized statements relinquishing any claim to their valuables. Officers seized cash, cars, cell phones, jewelry, and even sneakers. In most cases, criminal charges were never filed and there was no evidence to conclude the motorists were engaged in any illicit activity. The police simply took their property. If anyone not wearing a badge had done what the Tenaha police did, we would rightfully call it highway robbery.
Civil asset forfeiture must be reformed. Police must be denied any proceeds from civil asset forfeiture. The burden of proof must lie on police departments to prove guilt, not on property owners to prove innocence. And a higher standard of evidence than “preponderance of evidence” should be used.
11. End the transfer of surplus military equipment to police departments.
In the United States, since 1997, the 1033 Program has transferred more than $5 billion of surplus military equipment to local police agencies. Like civil asset forfeiture, the 1033 Program was an attempt to aide police departments in fighting the war on drugs. The purpose of weapons of war is to kill people and break things. This is antithetical to the mission of police departments, which is to serve and protect. Much as everything looks like a nail to the person who has a hammer, when police departments have armored vehicles and grenade launchers, they inevitably begin to see their neighborhoods as war zones, and the people residing within them as enemy combatants. This reinforces the "warrior" mentality (point #6).
The 1033 Program should be terminated in its entirety. A true military response should ideally never be necessary within an American neighborhood, but if it is, that response should fall to the National Guard or the actual military—not police officers.
