In the discussion over police reform, there are concrete, achievable steps that states and cities can take to reduce the number of people killed by police officers. Here, Duke University law professor Brandon Garrett outlines a number of them:
Last week, grand jurors failed to return murder or manslaughter indictments in the death of Breonna Taylor in Louisville. Instead, the grand jury returned less serious wanton endangerment charges — and no charges against the officers who shot Taylor. More than six months after Taylor’s death, we should be outraged but not surprised.
Adequate data tracking police use of force does not exist, but evidence suggests officers use some type of force over 900,000 times per year. Furthermore, there are widespread racial disparities not just in use of force but also in stops, frisks, questioning and arrests. Yet, as The Washington Post has reported, research shows few police officers are ever criminally charged for use of deadly force, and even fewer are convicted.
That is why the protesters, community groups and some lawmakers are right to set their sights higher than these three officers, focusing on structural racism and entrenched police practices. Accountability for police officers and police agencies must be broader than filing or non-filing of criminal charges in the worst-of-the-worst incidents.
What does accountability that is meaningful consist of? Making police pay, literally with money damages or criminal charges, prevents impunity; officers should not be sent a signal that the most egregious violations have no consequences. However, neither payments nor punishments fully ensure accountability.
For example, officers and agencies can be made to pay money damages. Officers benefit from qualified immunity standards that are incredibly broad and make it very difficult to sue police in civil rights cases. The Supreme Court developed those standards to insulate officers from litigation, with little basis in the text of the civil rights statutes or history. Lawmakers can change the rules for civil liability of police officers. There have been efforts to revise those standards with legislation passed, including recently in Colorado. Federal legislation has been introduced. Such laws should ensure municipalities pay when individuals’ constitutional rights are violated and judges do not get hung up on thorny and obscure technicalities concerning individual officer immunity.
The same type of reasonableness-based deference is typically available to police officers in state criminal cases as well, because state courts imported the standards that the Supreme Court developed to insulate officers from civil rights liability into the criminal setting. A decision that would be horribly reckless, exhibiting unsound training and contrary to department policy can still be deemed “reasonable” in the split-second that the officers fired their weapons. For that reason, prosecutors have often hesitated to even bring charges, knowing how challenging it can be to prove a case with such an officer-friendly legal standard.
Laws can change the rules for police criminal liability, too. California changed its standard from “reasonable” to a showing of “necessary” use of force. Washington state changed its law to eliminate a rule that an officer must be shown to act with “malice.” Some states and localities have also appointed independent, separate prosecutors to investigate cases against local law enforcement. Federal prosecutions of police officers are far too rare, in part due to the demanding legal standards.
We need to totally rethink the ground rules for police use of force. State level policies should, quite simply, require that police officers use the minimum amount of force necessary. They should incorporate principles of proportionality, whether it is deadly force or any other type of force being used. They should impose strict limits on the use of lethal and less lethal weapons and techniques. They should require de-escalation where possible before resorting to force. The American Law Institute has recommended as much, and agencies have already adopted this approach.
Even with better policies, the entire system must be more accountable and must adopt a new way of thinking about the harsh, counterproductive impacts of what has become everyday policing in this country. Criminal prosecutions against the worst-of-the-worst police abuses are not the best way to generate lasting structural changes. Even if such prosecutions were much more common and convictions were much more common, they would not meaningfully affect policy or the vast bulk of interactions between officers and the public.
We need to rethink how policing is done. Taking a structural approach, with colleagues, I have recommended that changes be adopted in a report issued this past summer. We need better ways to enforce constitutional rights. We need regulation of police policies and practices — including to improve use of force policies. We need institutional reforms. We need far better data. We need budget and municipal reforms at the local level. We need so much more.
In short, as troubling as it is that the grand jurors saw nothing criminal in the tragic and horrifying death of Breonna Taylor, neither criminal charges nor the many millions in compensation that the city paid are enough. Nor are reforms like ending “no-knock” warrants, like the one used in that case, or chokeholds, or SWAT, or coercive interrogations, or any number of disproportionate and gut-wrenching tactics. Comprehensive policing changes — more than just piecemeal interventions — are needed.
Following the largest protest movements in our history, that overdue reform may finally be more likely than ever after decades of near-continuous protests and litigation concerning racist and fundamentally unsound policing.
Brandon Garrett is the L. Neil Williams professor of law at Duke University and faculty director of the Wilson Center for Science and Justice.