John G. Peters, Jr., CLS, Ph.D.
Few people “live” through history changing events, yet alone be the target of them.
The Revolutionary War, the American Civil War and the Civil Rights Movement are three examples when citizens “lived” the experience and saw massive changes take place before their eyes and during their lifetime. Now, we in law enforcement (past and present) are seeing and living through unprecedented changes in the profession of our choosing, in our communities, in our nation, and around the globe. Like many of those before us, we are the target of focused rage from some groups who are leaning on, and inappropriately using, the tragic death of George Floyd to allegedly effect positive change in law enforcement. Other groups are disguising their anarchist goals, prejudices, hatred, criminal intent, and political agenda through their violent carnage inside cities and towns as a “justified response” for Mr. Floyd’s death.
Many protesters, their supporters and others inaccurately recite the First Amendment of the United States Constitution as their legal platform for assembly and freedom of speech. While they are partially correct, the First Amendment clearly provides this “right of the people peaceably to assemble. . . [emphasis added].” Anarchy in the streets, hurling objects at police officers, shooting at police officers, burning buildings, looting, and taking over sections of cities are not peaceful and, therefore, outside the boundaries of the First Amendment. Whatever one’s view about their behaviors, attitudes toward law enforcement and government, these protests have created some changes within law enforcement. One such response is President Trump’s Executive Order on safe policing.
Presidential Executive Order
On Tuesday, June 16, 2020, President Donald Trump issued an “Executive Order on Safe Policing for Safe Communities.” The Order highlighted, “Law enforcement officers provide the essential protection that all Americans require to raise their families and lead productive lives.” While viewed as a “law and order” president, the Order also confirmed, “Unfortunately, there have been instances in which some officers have misused their authority, challenging the trust of the American people, with tragic consequences for individual victims, their communities and our Nation.” No specific victims are mentioned, but the names of George Floyd and Walter Scott, the latter fatally shot by a police officer on April 4, 2015, come to mind.
In Section 1 of the five section Executive Order, the protection of all people’s rights stand out in the “Purpose” of the Order. “Particularly in African-American communities, we must redouble our efforts as a Nation to swiftly address instances of misconduct.” In short, justice must become a guarantee to all people within the United States, while only the very few will say that “injustice” is acceptable.
Section 2 focuses on “Certification and Credentialing” of law enforcement agencies and officers. The United States Attorney General “shall certify independent credentialing bodies that meet standards to be set by the Attorney General.” State and local law enforcement agency’s “use-of-force policies” must “prohibit the use of chokeholds . . . except in those situations where the use of deadly force is allowed by law.”
Establishing and meeting minimum agency credentialing standards will change the professionalism of policing in many areas of the United States. The Commonwealth of Pennsylvania, for example, has many part-time law enforcement agencies and officers. In two other states, statutes authorize sworn officers to work for up to one year before attending an academy. Few will argue that this is a good practice, but it came about because some law enforcement administrators wanted to “test drive” their new employee before spending a lot of money sending him (or her) to the academy. Poor leadership leads to poor decisions and this is but one example. These practices need to be eliminated because it gives the antagonists fuel for their arguments and actions.
Information sharing is the focus of Section 3 of the Order and requires the United States Attorney General to “create a database to coordinate the sharing of information between and among Federal, State, local, tribal, and territorial law enforcement agencies concerning instances of excessive use of force related to law enforcement matters, accounting for applicable privacy and due process rights.” This is consistent with recommendations made by the US Department of Justice, the International Association of Chiefs of Police, the Police Executive Research Forum, and other groups. These “warning systems” are designed to identify those officers who use force on a frequent basis so command staff can analyze why they are frequently using force. Explanations may include that the officer is working in a high crime area, makes a lot of arrests, and encounters resisting suspects. Another possible reason is that the officer enjoys using force and abuses it. However, the FBI reports few law enforcement agencies are contributing to its use-of-force database, raising questions about why many administrators are unwilling to share these data.
Dovetailing social services with law enforcement services is the focus of Section 4 of the Order which accurately declares, “because law enforcement officers often encounter [mental health, homeless and addicted] individuals suffering from these conditions in the course of their duties, all officers should be property trained for such encounters.” The US Attorney General is directed to work with the Secretary of Health and Human Services to “identify and develop opportunities to train law enforcement officers with respect to encounters with individuals suffering from impaired mental health, homelessness, and addiction” [and] “to increase the capacity of social workers working directly with law enforcement agencies. A recent example is the City of Albuquerque which changed its police department to a public safety agency and is using trained mental health professionals to respond to people in mental health crises.
Of course, these lofty proposals take time and money to develop, implement and monitor. Section 5 focuses on providing not only money, but also legislation through the Congress to “enhance the tools and resources available to improve law enforcement practices and build community engagement.” These practices include:
- “training and technical assistance required to adopt and implement improved use-of-force policies and procedures, including scenario-driven de-escalation techniques”;
- “retention of high-performing law enforcement officers and recruitment of law enforcement officers who are likely to be high-performing”;
- “confidential access to mental health services for law enforcement officers”; and
- “programs aimed at developing or improving relationships between law enforcement and the communities they serve . . . .”
Training in these and other areas is critical to improving law enforcement’s response to the community. I encountered inadequate law enforcement training when I was a patrol officer and deputy sheriff, and many who are reading this may have similar experiences. The average number of hours required to become a barber across the US is 1500 hours. Surprisingly, many states accept far fewer hours for the recruit training of their officers. Many law enforcement “problems” cited by the public reflect poor training, such as not knowing how to appropriately engage a disabled individual using a wheelchair or another who is autistic. Another problem begins in recruitment.
If law enforcement is willing to embrace the mandates of President Trump’s Order, then the focus of requirements for law enforcement officers must change. One former IACP president appropriately questions today’s recruiting focus when recent technological, cultural, and social changes require different skill sets to decade-old job requirements. Yesterday’s recruitment criteria may not fit well into the needs of today’s communities.
Qualified Immunity Changes
Colorado recently passed its “Enhance Law Enforcement Integrity Act” which allows plaintiffs who sue law enforcement officers to bypass qualified immunity at the state level. The doctrine of qualified immunity protection is still available to government agents at the federal level. Qualified immunity is a judicial liability shield created by the Supreme Court of the United States (SCOTUS) in 1982. In short, qualified immunity protects law enforcement officers from legal liability, unless the rights they allegedly violate are clearly established by previous decisions in their federal district or by SCOTUS. Qualified immunity is an affirmative defense available to law enforcement officers.
Congress and many other states are also looking to nullify the doctrine of qualified immunity, too. It is important to pay attention to what Congress (and possibly your state) does because it can impact your civil liability defenses.
Recommendations
Whether or not we agree with the enacted or the proposed changes, including changes yet imagined, this is the new reality. Law enforcement is under strong magnification in the societal microscope. While policy and training which permitted the kneeling on a person’s neck, and the officer’s failure to get off the neck (even when questioned by other officers and by citizens who watched the problematic technique used on Mr. Floyd), at first blush may appear to be the issues, it is much deeper and complex. There are many systemic issues such as the failure to discipline officers who repeatedly use too much force, often protected by union agreements which will come under intense scrutiny as the microscope expands its focus. Administrators, too, are not immune. Many have resigned, or will be resigning or retiring, because they have had enough of “defunding” realities and know they are facing an impossible uphill battle (think Seattle’s police chief). How does one fight against national and local politicians who repeatedly claim protestors engaged in criminal activities (such as burning and looting of buildings and assaulting officers and business owners) are peacefully exercising their First Amendment rights. This is utter nonsense and only fuels the violence.
Many pundits claim the causes of arrest-related deaths are training and policy failures. This may be partly true, but what about an organizational culture resistant to change? That resistance will crumble, like collective bargaining agreements which often protect officers. Yes, there is abuse of officers by leadership and command staff in some agencies, but prohibiting or making it nearly impossible to discipline rogue officers is unacceptable, too. Change is here and we are compelled to embrace it.
Confusingly, some prosecutors (such as in St. Louis, Chicago and Philadelphia) are reluctant to prosecute people who commit serious crimes and appear eager to hastily charge officers with crimes before investigators complete the incident investigation. Defunding police agencies will make this worse because it will take longer to investigate incidents with inadequate personnel. Taxpayers cannot have it both ways: defunding police and increasing personal and community safety. Recently, protesters in Seattle confronted and rushed a “60 Minutes” reporter and her news team. She exclaimed, “Where are the cops?” Defunding is the inverse of protection.
Police response to calls for service will change. As a University of Baltimore undergraduate studying criminal justice, my professor, retired Major Norman Pomrenke (Baltimore City Police Academy) told us that one day police will respond from the station like firefighters. We laughed and could not conceive his prediction. He must have had a crystal ball as law enforcement is forcibly becoming more reactive than proactive in patrolling communities. While some may scoff at this reality, there are those who equally scoff at implementing training topics which make them feel uncomfortable. One example is Implicit Bias training.
Four years ago, after “Implicit Bias” trainers shared their information with attendants at an international conference, several older officers questioned the need for such training. “This is BS,” one male said. Another officer declared that this type of training only caters to the minority community. The Implicit Bias trainers returned to the international conference for the next three years and, in 2019, no one questioned the training. In fact, it was one of the highlights of the conference.
Another change is the elimination of chokeholds as a force option for officers. Several states and city councils have now banned officers from using chokeholds. It can make sense to eliminate them because of improper application training or when officers are seldom retrained in their application. Applying chokeholds is a perishable skill and retraining is necessary. Conversely, the elimination of this force option may have unintended consequences: the increased shootings of wild, drug-crazed individuals who are nearly impossible to physically capture and control.
An unintended result of eliminating or severely limiting force options (such as pepper spray, TASER®, chokeholds) will cause officers to use more force or to let other officers “handle” the problem. Many trainers and street officers know that, over the past couple of decades, the watering down of training programs – particularly defensive skills – has produced officers who are often scared and ill-equipped to handle physical combat. “Don’t hurt them,” or “People in your class are filing workers’ comp claims, so tone it down,” are two refrains heard by trainers from administrators. To stay in coveted training positions, some trainers became enablers versus solution finders. The result: Many officers are often scared when they get into a confrontation because they lack the necessary physical skills and mental attitude due to insufficient and inadequate training.
Forcing change on law enforcement officers without effecting multiple changes in the societal and political cultures are doomed for failure and will only escalate situations and anger officers, administrators, local government officials, and the public. Change is a two-way street. Community residents and visitors must realize that, when they obey law enforcement commands or peaceably assemble, there is little risk of abuse by those who comprise the thin blue line. Yes, there are rogue officers, just like any profession. In contrast, other professionals must seldom tolerate what we have witnessed over the past several weeks: protesters shoving officers; blinding officers with laser lights; ambushing officers; shooting officers, causing death or serious bodily harm; destroying government property; and, yes, partially taking over sections of a city and then disrespecting and holding hostage local businesses and citizens.
Legislators, media pundits, law enforcement administrators, along with progressive law enforcement organizations must hit the “pause button” and stop responding with knee-jerk reactions, but with critically thought-out responses which have a genuine chance of working. Politicians are quick to argue that they are “following the COVID-19 data” to justify the closing of businesses, limiting church gatherings, etc. They, like the citizens, need to also “follow the data on officer-involved shootings” which discredits their narrative about unjustified, racial disparate killings. Thoughtful, timely and appropriate responses must be the norm; otherwise, disruptive and biased changes will occur which will do more harm than good. Officers are watching just like community members. Many officers, I predict, will retire like the Seattle police chief or resign from a job they love, while still others will “tread water” until they can retire. The big question is: Who will be qualified to take their place or want to take it? John G. Peters, Jr., CLS, Ph.D. contributes regularly to Police and Security News. He serves as president of the Institute for the Prevention of In-custody Deaths, Inc. (www.ipicd.com) and as Executive Director of the Americans for Effective Law Enforcement (www.aele.org). A judicially qualified expert witness, he has testified in international, federal and state courts, an